Aron Zelman v Darren Lefcoe & Ors

An application to restore an appeal struck out for non-compliance with an unless order is, in substance, an application for relief from sanctions. The court should apply the three-stage test in Denton v TH White Limited: assess the seriousness and significance of the default, identify the reason for it, and evaluate all the circumstances so as to deal with the case justly. A wilful refusal to comply, without a good reason, may justify maintaining the strike-out where restoration would cause disproportionate cost, delay and use of court resources. An application bound to fail may be marked totally without merit.

The applicant was the defendant in commercial lease proceedings concerning two shops. Following earlier orders, including a civil restraint order and dismissal of applications as totally without merit, he appealed an order made by HHJ Saunders on 16 June 2023.

The appeal was struck out after the applicant failed to comply with an order of Ritchie J requiring an appeal bundle by 28 March 2025. He sought restoration or variation, relying principally on his alleged inability to obtain further transcripts, ill health and anticipated involvement of the Official Solicitor. The central issue was whether the appeal should remain struck out under the principles governing relief from sanctions.

1. Application dismissed. The appeal remained struck out. The application for restoration or variation was treated in substance as an application for relief from sanctions.
2. The court applied the three-stage test in Denton v TH White Limited [2014] EWCA Civ 906. The failure to comply with Ritchie J’s order was serious and significant. The applicant had ample time to file the required bundle and had failed to do so on multiple occasions.
3. There was no good reason for the default. Ill health was unsupported by medical evidence. The applicant possessed the transcript of the judgment under appeal but had not filed it. His wish to obtain transcripts of other hearings did not justify non-compliance with the order. The court characterised the failure as a wilful refusal.
4. Considering all the circumstances, including the interests of both parties and the public, the overriding objective required enforcement of compliance. The proceedings were objectively straightforward but had become procedurally tortuous, had consumed substantial court resources and would be prolonged by restoration. Restoration would therefore be disproportionate and contrary to the objectives of expedition and saving expense.
5. The application was bound to fail and was accordingly marked totally without merit, consistently with the principles identified in R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091 and R (Hossain) v Secretary of State for the Home Department [2016] EWCA Civ 82. Costs on the indemnity basis were reserved for determination on the papers.

• High Court (King's Bench Division): Ritchie J’s order of 11 March 2025 struck out the appeal for failure to comply with an unless order requiring an appeal bundle.
• High Court (King's Bench Division): On 7 August 2025, the court refused restoration or variation and maintained the strike-out.