Boidun Jaiyesimi v Sunday Adeyemi Kukoyi

An application made by email is not properly filed merely because the court receives it. Where the applicable practice direction requires payment arrangements to be provided when emailing the court, compliance is required for filing. A party must also obtain issuance and serve the issued application where the rules require it.

On an appeal from a case-management decision, the appellate court reviews the decision and interferes only for an error of law or principle, procedural unfairness, failure to consider relevant matters, reliance on irrelevant matters, or a decision outside the reasonable ambit of discretion. Under Denton, a plausible explanation for a serious breach is not necessarily a good reason. The court must consider the seriousness of the breach and all the circumstances, including efficient and proportionate litigation and compliance with rules and orders.

Two appeals arose from consolidated County Court proceedings concerning a disputed loan, mortgage and trust arrangement relating to residential property. In the first appeal, the defendant challenged the refusal to determine an application to amend his defence and counterclaim because it had not been properly filed or served. In the second, he challenged the refusal of relief from sanctions after failing to serve witness statements by an unless order, which resulted in his defence being struck out and judgment being entered for the claimant.

The central issues were whether the amendment application complied with the filing, fee and service requirements, and whether the lower judge had wrongly exercised the discretion to refuse relief from sanctions.

1. Appeal concerning amendment application. The appeal was dismissed. Under CPR Part 23, an application notice is made when received by the court, but filing by email also required compliance with CPR PD5B paragraph 2.3(a), including stating the preferred payment method and providing a telephone number for payment. The appellant did neither. The application fee was not properly offered or paid, so the application was not properly filed.
2. The appellant served a draft application by email, but CPR r.23.7 and PD23A paragraph 4.1 required service of the issued application. The application was never issued and the issued notice was never served. Listing a hearing did not cure those defects. The lower judge’s conclusion was correct, although the appellate court’s analysis differed slightly.
3. The strict deadline was imposed against a background of repeated procedural defaults and failed applications. The judge was entitled to require strict compliance and did not wrongly exercise any discretion to waive the breaches. The court made no determination on the substantive merits of the proposed amendments.
4. Relief from sanctions. The appeal was dismissed. The lower judge correctly applied the three-stage test in Denton v White. Failure to serve witness statements by an unless order was serious and significant. Compassionate leave, the use of a locum and a later computer failure were plausible circumstances, but they did not amount to a good reason because substantial time remained, the solicitor failed to warn the locum of the unless order, and the work had been left until late.
5. At the third stage, the history of repeated breaches, late and defective applications, unpaid costs and the resulting delay and risk to the trial strongly favoured enforcing the sanction. An appeal against an earlier case-management decision did not stay the proceedings or entitle the appellant to disregard later orders. Neither appeal satisfied the threshold for appellate intervention.

• High Court (King's Bench Division): both appeals from decisions of HHJ Lethem in the Central London County Court were dismissed.
• Central London County Court: the amendment application was not determined because it was not properly filed or served; relief from sanctions was refused, the defence was struck out and judgment was entered for the claimant.