Ursula Riniker v Mostapha Al-Turk

An application under CPR 3.3(5)(a) to set aside an order made without hearing the parties must comply with the general application procedure in Part 23, but no particular form is required. Minor procedural defects may be waived where they cause no prejudice.

Where such an application remains undetermined, non-compliance with the challenged order does not, without more, require an application for relief from sanctions. The court should first determine the substantive application. Any sanction must then be applied proportionately and in accordance with its terms; an order debarring a party from being heard does not automatically justify striking out the appeal.

The appellant appealed against an order of Her Honour Judge Baucher striking out her appeal from an interim charging order made final by Deputy District Judge Morley. The strike-out followed the appellant’s non-compliance with directions made by HHJ Luba KC concerning an appeal bundle, skeleton arguments and authorities.

The appellant had sent an e-mail application under CPR 3.3(5)(a) seeking to set aside parts of the Luba Order which she said had been made without prior submissions. Judge Baucher treated the e-mail as no application, considered relief from sanctions under CPR 3.9 and struck out the appeal. The central issues were whether the e-mail constituted a valid application, whether relief from sanctions was required, and whether strike-out was a permissible consequence of the stated sanction.

1. Appeal allowed. The e-mail constituted an application notice for the purposes of CPR 23 and CPR 3.3(5)(a), although it contained minor defects. Part 23 did not require Form N244. The court could waive the missing signature and payment information under CPR 3.10 because the defects were minor and caused no prejudice.
2. The application under CPR 3.3(5)(a) was substantively available because HHJ Luba KC had made relevant directions of his own initiative without prior representations. The appellant was not required to appeal the Luba Order instead.
3. While the application remained undetermined, the appellant’s non-compliance with the Luba Order did not, without more, require an application for relief from sanctions. Judge Baucher should first have considered the merits of the application to set aside the directions.
4. If relief from sanctions was considered necessary, the Denton three-stage approach applied. The seriousness and significance of the breach required consideration of whether the material had already been supplied, whether alternative compliance was practicable, and whether the directions were necessary. The existence of the pending set-aside application supplied a good reason for the non-compliance. Judge Baucher’s assessment at each stage fell outside the permissible ambit of reasonable disagreement.
5. Even if relief had properly been refused, paragraph 11 of the Luba Order imposed a sanction of debarring the appellant from being heard without permission. It did not require striking out the appeal. Judge Baucher erred by failing to consider whether the appellant should nevertheless be heard and by imposing a disproportionate and draconian consequence.
6. The substantive appeal from DDJ Morley’s order was reinstated. The application to set aside the relevant provisions of the Luba Order was to be listed before a Circuit Judge for substantive consideration at an inter partes hearing. The respondent was ordered to pay £1,149.07 in costs within 28 days.

• High Court (King’s Bench Division): The appeal from the Baucher Order was allowed. The substantive appeal from the order of Deputy District Judge Morley was reinstated, and the application concerning the Luba Order was remitted for substantive consideration.
• County Court: Deputy District Judge Morley made an interim charging order final on 7 November 2019. HHJ Luba KC later made directions for the conduct of the appeal. Her Honour Judge Baucher struck out the appeal by order dated 6 April 2022.