LLoyds Business OD - Unaware of Personal Guarantee ***Case Struck Out and awarded Costs !!***

[AndyOrch]

Yes you can download it to the screen and complete then print off (3 copies) but don't be too quick to post a copy to the claimant.

 

N244 Form

 

1/2 Are easy enough Name etc

 

 

 

Order is request Strike Out

 

 

In Box 3 :-

 

An order that this claim be struck out pursuant to CPR 3.4 (2a, 2b) as the Particulars of Claim

 

have not been sufficiently particularised to enable the defendant to understand what claim he has to answer & the Claimant has not responded to the Order dated xxxxx

District Judge xxxxxxx to file and serve an amended Particulars of Case by the 19th Jan 2012

 

 

4 Draft Order ?????

 

Yes(see below)

 

5 At a hearing ??

 

Without a hearing

 

6/7/ Left Blank

 

Yes- Blank

 

8 which judge

 

District Judge

 

9

 

Write Claimant

 

10 Attach Directions

11 Sign etc

 

 

Draft Order

 

1. This claim is struck out pursuant to CPR 3.4(2) by order of the court

 

2. The Claimant shall pay the Defendant his costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

Regards

 

Andy

 

 

 

 

 

 

 

 

 

 

 

Edited February 1, 2012 by Andyorch

[peebeeh]

Good morning Andy,

I am only back to my office this morning - and working on my application.

Thanks for all of the information received, which all makes sense to me. I have read CPR 3.4 so I've got some background on the procedure.

I have 2 queries please:

 

1. In the N244 giudance notes I am requested to send sufficiant copies for all parties who are to be served (and 1 for the court).

I interpret this that the court will send the claimant their copy - is this correct?

 

2. I am struggling with q10, not wishing only to repeat the info given at q3. Am I missing the point here?

Edited February 2, 2012 by peebeeh
spelling

[AndyOrch]

Good morning Andy,

I am only back to my office this morning - and working on my application.

Thanks for all of the information received, which all makes sense to me. I have read CPR 3.4 so I've got some background on the procedure.

I have 2 queries please:

 

1. In the N244 guidance notes I am requested to send sufficient copies for all parties who are to be served (and 1 for the court).

I interpret this that the court will send the claimant their copy - is this correct? Yes and no depends most applications are served on notice so I would also send them a copy (2nd class of course) and 2 days later:-)

 

2. I am struggling with Q, not wishing only to repeat the info given at Q. Am I missing the point here?

Directions is a formal draft of Q3 as you state its you choice to use it or just state no at Q4 & Q10.

 

Regards

 

Andy

[peebeeh]

Directions is a formal draft of Q3 as you state its you choice to use it or just state no at Q4 & Q10.

 

Regards

 

Andy

 

Is there any advantage / disadvantage in asking also for summary judgment? See Practice Direction 3A 1.7

Would it assist in the event of the Claimant starting a new claim at a late date?

[AndyOrch]

By all means request it also and yes thats the main advantage it then becomes a judgment.

 

Regards

 

Andy

Edited February 2, 2012 by Andyorch

[AndyOrch]

Box 3 on N244:Claim No: XXX XXXXXDraft Order1 the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.2The Claimant shall pay the Defendant his costs of this application assessed in the sum of £XXXXX

[AndyOrch]

The above is an example of how to phrase it you request judgment ( not Summary Judgment )

[AndyOrch]

Judgment without trial after striking out

 

CPR 3.5

 

(1) This rule applies where –

(a) the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and

 

(b) the party against whom the order was made does not comply with it.

 

 

(2) A party may obtain judgment with costs by filing a request for judgment if –

(a) the order referred to in paragraph (1)(a) relates to the whole of a statement of case

[The Mould]

Verbatim -

 

It is ordered that:

1. The application for summary judgment is dismissed

2. Permission to the Claimant to amend the claim form by 4pm 19th January 2012 and re-serve

3. Permission to the Defendant to file an amended Defence by 4pm 16th February 2012

4. No order for costs

 

I did apply for costs on this occasion

 

Just adding some further advice to the excellent advice already given on your case.

Rule 3.4 Power to strike out a statement of case

3.4

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out (GL) a statement of case if it appears to the court—

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© that there has been a failure to comply with a rule, practice direction or court order.

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.

(4) Where—

(a) the court has struck out a claimant's statement of case;

(b) the claimant has been ordered to pay costs to the defendant; and

© before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of claim was struck out,

the court may, on the application of the defendant, stay (GL) that other claim until the costs of the first claim have been paid.

(5) Paragraph (2) does not limit any other power of the court to strike out (GL) a statement of case.

(6) If the court strikes out a claimant's statement of case and it considers that the claim is totally without merit—

(a) the court's order must record that fact; and

(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

And;

Rule 3.5 Judgment without trial after striking out

3.5

(1) This rule applies where—

(a) the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and

(b) the party against whom the order was made does not comply with it.

(2) A party may obtain judgment with costs by filing a request for judgment if—

(a) the order referred to in paragraph (1)(a) relates to the whole of a statement of case; and

(b) where the party wishing to obtain judgment is the claimant, the claim is for—

(i) a specified amount of money;

(ii) an amount of money to be decided by the court;

(iii) delivery of goods where the claim form gives the defendant the alternative of paying their value; or

(iv) any combination of these remedies.

(3) Where judgment is obtained under this rule in a case to which paragraph (2)(b)(iii) applies, it will be judgment requiring the defendant to deliver goods, or (if he does not do so) pay the value of the goods as decided by the court (less any payments made).

(4) The request must state that the right to enter judgment has arisen because the court's order has not been complied with.

(5) A party must make an application in accordance with Part 23 if he wishes to obtain judgment under this rule in a case to which paragraph (2) does not apply.

Effect of rule

3.5.1 This rule applies where a striking out occurs automatically because of non-compliance with the terms of a court order, for example an unless order. In such circumstances this rule enables the other party to obtain judgment with costs.

In the cases falling within r.3.5(2) the judgment can be obtained by filing a request stating that the right to enter judgment has arisen because the court's order has not been complied with. In other cases the party entitled to judgment under this rule must make an application in accordance with Pt 23 (General rules about applications for court orders).

Where the court makes an order directly striking out a statement of case it may also make any consequential order it thinks appropriate (r.3.4(3)) including entering such judgment for the other party as that party appears entitled to (Practice Direction supplementing r.3.4, para.4.2, see para.3APD.4). Rule 3.5 does not apply in these circumstances.

In Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 643; [2007] 1 W.L.R. 1864; [2007] 3 All E.R. 365, CA, the Court of Appeal stated that, at the hearing of an application made under r.3.5(5), the court's function is limited to deciding what order should properly be made to reflect the striking out sanction which has already taken effect. The Court rejected the submission that, at such a hearing, it was open to the defaulting party to contend that striking out could not be justified unless the breach of the order was so serious as to prevent there being a fair trial (see further para.3.4.4.1 above). It is only if there is an application under r.3.8 by the defaulting party that the court is required to consider whether, in all the circumstances, it is just to make an order granting relief from the sanction automatically imposed.

In Richardson v Langtree Group Plc [2004] EWCA Civ 1447; October 14, 2004, unrep., CA, acting on own motion and in the absence of the parties, a district judge ordered that unless the claimant complied with a direction as to disclosure of documents by a particular their "claim will be struck out without further order". The claimants did not comply but the defendant made no attempt to request judgment against the claimant until the start of the trial, by which time disclosure had been made. The Court of Appeal referred to the question whether r.3.5 applied in these circumstances. The defendant's contention that it did not was based on the argument that the district judge's "springing" order was not merely an order which included a term that the claimant's case should be struck out, but an order actually striking out the claim once the date for compliance had passed. The defendant further argued that r.3.5 did not apply because he was not seeking a "judgment with costs". The court managed to dispose of the appeal on other grounds but it doing so doubted the validity of the claimant's arguments as to the application of r.3.5.

Kind regards

The Mould

[AndyOrch]

Hey Mould were have you been hiding ??? Nice to have you back posting.

 

Regards

 

Andy

[peebeeh]

[ATTACH=CONFIG]33152[/ATTACH][ATTACH=CONFIG]33151[/ATTACH]

 

Andy,

Here are my 2 documents - please will you give them the benefit of your expert opinion

Many thanks

P

[The Mould]

Hey Mould were have you been hiding ??? Nice to have you back posting.

 

Regards

 

Andy

 

Good afternoon Andy and thank you for your kind comment. How are you? I have noticed your consistent first class advice, assistance and support being given to many Cag members Andy, in my opinion, both professional and personal that is, I think that you are a priceless asset to the Consumer Action Group.

 

Unfortunately I am dealing with an incredibly tragic and deply distressing and upsetting personal matter at the present, I have been venturing out onto these moors when I have been able to but not as much as I would like to.

 

With regards to the order posted up on peebeeh's case, as there were no sanctions imposed upon the Claimant should he default on the same, peebeeh may be required to request leave of the Court to apply for Judgment in his favour under CPR r.3.5 using the CPR Part 23 (Application notice N244), it all depends really on what the Judge decides in respect of the Claimant's non-compliance with that said order; hopefully the Judge will accept the strike out and Judgment without the need for peebeeh to use the Part 23 procedure.

 

Kind regards

 

The Mould

[AndyOrch]

Hi Peebeeh

 

You wont need to request Summary Judgment as I have advised and confirmed by The Mould, pursuant to CPR 3.4/ 3.5,this will request Judgment and Costs as opposed to Summary Judgment CPR 24.

 

Regards

 

Andy

Edited February 3, 2012 by Andyorch

[AndyOrch]

Good afternoon Andy and thank you for your kind comment. How are you? I have noticed your consistent first class advice, assistance and support being given to many Cag members Andy, in my opinion, both professional and personal that is, I think that you are a priceless asset to the Consumer Action Group.

 

Unfortunately I am dealing with an incredibly tragic and deply distressing and upsetting personal matter at the present,

 

Kind regards

 

The Mould

 

Many thanks, kind words indeed, sorry to hear of your present circumstances, come back when your situation eases Mould.

 

Kind Regards

 

Andy

[peebeeh]

Hi Peebeeh

 

You wont need to request Summary Judgment as I have advised and confirmed by The Mould, pursuant to CPR 3.4/ 3.5,this will request Judgment and Costs as opposed to Summary Judgment CPR 24.But you go with what you feel and understand better.

 

Regards

 

Andy

 

Hi Andy, I am doing my best to absorb the sudden rush of information!

 

First - I am looking at CPR 3.5 - this reads to me that it applies only in a case where the court had ordered with a 'unless' or 'if not' clause - can you clarify this before I move on?

 

I posted up my 2 documents before seeing the recent activity - did you get chance to scan your eyes over them? - they are both in draft form.

Edited February 2, 2012 by peebeeh

[AndyOrch]

Hi Andy, I am doing my best to absorb the sudden rush of information!

 

First - I am looking at CPR 3.5 - this reads to me that it applies only in a case where the court had ordered with a 'unless' or 'if not' clause - can you clarify this before I move on? Well they didnt re plead so its was an unless or not , CPR 3.4 does reflect incorrect pleading, or striking out a statement of case, so refer to both

 

I posted up my 2 documents before seeing the recent activity - did you get chance to scan your eyes over them? - they are both in dreft form.

.Drafts are fine just try to understand that CPR 3.4/5 will attain judgment without the need to request CPR 24

Andy

 

 

[The Mould]

Hi Andy, I am doing my best to absorb the sudden rush of information!

 

First - I am looking at CPR 3.5 - this reads to me that it applies only in a case where the court had ordered with a 'unless' or 'if not' clause - can you clarify this before I move on?

 

I posted up my 2 documents before seeing the recent activity - did you get chance to scan your eyes over them? - they are both in draft form.

 

Peebeeh, long post below,

It is not an essential requirement for a strike out motion to be based upon grounds that the order to which the party defaulted on contained an expressed motion to strike out his statement of case for non-compliance with the order.

Some further commentary on the subject in question for you to study with regards to your course of action to decide upon and of course the authorities to rely upon (Case law) as to the same;

Failure to comply with a rule, practice direction or court order (r.3.4(2)©)

3.4.4 Rule 3.4(2)© gives the court an unqualified discretion to strike out a claim or defence where a party has failed to comply with a time limit fixed by a rule, practice direction or court order. In Nomura International Plc v Granada Group Ltd [2007] EWHC 642 (Comm) (noted in para.3.4.3, above and para.16.2.1, below) a failure to comply with r.16.2 led to the striking out of the claim form; this was held to be the only appropriate sanction because, on the facts, the very commencement of proceedings amounted to an abuse of process. However, in many cases there may be alternatives to a strike out which may be more appropriate: awarding costs on the indemnity basis payable forthwith, ordering a party to pay money into to court and awarding interest at a higher or lower rate (Biguzzi v Rank Leisure Plc [1999] 1 W.L.R. 1926, CA).

Where liability is not in issue, it is no longer necessary for the court to make an "all or nothing order" on a strike out application if it would be unjust to do so: instead, the court should take a careful look at all of the relevant circumstances and weigh up carefully the order that it considered it would be just to make on the facts before it: for example, restrictions may be placed upon the claimant's right to claim interest and special damages accruing during the period of delay; the claim could be allowed to proceed to trial on the basis that the judge will assess compensation which would have been payable to the claimant had the trial not suffered delay (Walsh v Misseldine [2000] L.T.L. May 18, CA).

The relevant circumstances include any prejudice suffered by other parties but it is no longer necessary to consider prejudice in the way it was considered pre-CPR, or to ascribe it to a particular period or periods of delay (Axa Insurance Co Ltd v Swire Fraser Ltd (formerly Robert Fraser Insurance Brokers Ltd) [2001] C.P. Rep. 17; [2000] C.P.L.R. 142, CA).

"I can see that were delay to have occasioned prejudice short of an inability of the court to be able to provide a fair trial, then there would be, or may be, scope for the use of other forms of sanction. But where the conclusion that is reached is that the prejudice has resulted in an inability of the court to deal fairly with the case, there can only be one answer and one sanction; that is for the [proceedings] to be struck out" (per Latham L.J. in Purefuture Ltd v Simmons & Simmons, May 25, 2000, CA).

The relevant circumstances may also include the weakness of the claim even if it is not so weak as to have no real prospects of success (Cohort Construction (UK) Ltd v M Julius Melchior [2001] C.P. Rep. 23, CA; cf. Chapple v Williams [2000] L.T.L., December 8, CA, concerning applications under r.3.9).

The court's power to strike out under r.3.4(2)© is not confined to circumstances in which the upshot of the party's failure to comply with a rule, practice direction or order has been serious delay (of the kind that pre-CPR might have led to an application to strike out for want of prosecution), though that is the more usual case. Where the breach of an order is not a gross breach, striking out is likely to be an unjust outcome, especially where it is not suggested that the claim had no prospects of success (Carlco Ltd v Chief Constable of Dyfed Powys [2002] EWCA Civ 1754 (claimant failing to give proper disclosure in accordance with a peremptory order)). Where an application is made to strike out a claimant's statement of case, principally because of their non-compliance with court orders, the question whether a fair trial is still possible is not determinative (Eatwell v Smith & Williamson [2003] EWHC 2098 (Ch); July 21, 2003, unrep. (Lewison J.)).

The use of an obsolete form was contrary to the practice direction supplementing Pt 7 and brought about several other technical breaches of the rules and practice directions. However, the form used contained all the information which the defendants needed in order to understand the claim being made against them. In those circumstances it was not appropriate to strike out the claim and instead an order was made directing the correction of the defects Hannigan v Hannigan [2000] 2 F.C.R. 650, CA, cf. Cala Homes (South) Ltd v Chichester DC (Time Limits) [2000] 79 P. & C.R. 430; [2000] C.P. Rep. 28,

Striking out a statement of case because of a litigant's failure to comply with a court order for the payment of a sum of money which is beyond their means to pay may amount to a breach of the ECHR art.6(1) right of access to a court (cf. Ford v Labrador [2003] UKPC 41; [2003] 1 W.L.R. 2082. However, in Oil & Minerals Development Corp v Sajjad April 4, 2002, unrep. (Gibbs J.), the defendants were ordered to pay the costs of interlocutory proceedings and failed to comply with an order for payment on account of those costs; holding that there was no possible or credible excuse for that failure, Gibbs J. fixed further dates for payment on terms that, in default the defence would be struck out (see also Crystal Decisions (UK) Ltd v Vedatech Corp [2006] EWHC 3500 (Ch), Patten J. noted in para.44.3.15, below).

In Hayden v Charlton [2010] EWHC 3144 (QB), Sharp J., claims for libel brought by claimants, who had legal representation, against litigants in person were struck out under r.3.4(2)© as there had been deliberate and wholesale non compliance with the rules and orders of the court by the claimants which resulted in a serious delay to the progress of the claims including the loss of a trial window. The claimants had not been subject to any "unless" order but this was not regarded as a bar to striking out the claims. In considering whether it would be appropriate to strike out the claims, the judge took into account that this had implications for the claimant's rights pursuant to art.6(1) of the ECHR. However the judge cited Hale L.J. (as she then was) who said in Khilili v Bennett [2000] E.M.L.R. 996 at [50]:

"National laws are entitled to regulate their domestic procedures, and this includes prescribing timetables and steps which have to be taken within a limited period. If a claimant has not complied with those rules, then normally he will not be able to complain under Article 6".

Striking out sanction effective without need for further order ("unless" orders)

3.4.4.1 Rule 3.1(3) states that, when the court makes an order, it may (a) make it subject to conditions, and (b) specify the consequence of failure to comply with the order or a condition. This provision and r.3.4(2)© (when put together) confirm that the court may make a conditional order in the form of an order stating that, unless by a particular date a party complies with a procedural order made by the court (e.g. a disclosure order, or an order to give security for costs), their statement of claim shall be struck out and their claim dismissed. (The existence of such power is assumed in r.3.5 and r.3.8, see further below.) The consequence (i.e. the striking out and dismissal sanctions) follows automatically upon the party's failure to comply with the condition, without any further order of the court. In Practice Direction (Striking Out a Statement of Case) (supplementing r.3.4) it is stated in para.1.9 (insertedin October 2005) that, where an order (or a rule or a practice direction) states that a statement of case "shall be struck out" or "will be struck out or dismissed", this means that the striking out or dismissal "will be automatic and that no further order of the court will be required" (see para.3APD.1 below). Obviously, the automatic imposing of the striking out and dismissal sanction can have very serious consequences for the defaulting party. In Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463; [2007] 1 W.L.R. 1864; [2007] 3 All E.R. 365, CA, the Court of Appeal stressed that, in making a conditional (or "unless") order containing such sanction, a judge should consider carefully whether that sanction is appropriate in all the circumstances of the case.

Where an unless order has had this effect, the court retains jurisdiction to grant the defaulting party relief (usually in the form of an extension of time for complying) if that party makes an application under r.3.8 (in which event the court will consider all the circumstances, in particular, those listed in r.3.9). (The importance of maintaining the distinction between the effect of the order itself and the exercise of the court's jurisdiction to grant relief was stressed in the Marcan Shipping case.)

Further, where an unless order has had this effect, the defaulting party's opponent may obtain judgment by complying with r.3.5. In such event, (a) in the circumstances provided for by r.3.5(2), the party against whom the claim was made may obtain judgment by filing a request for judgment, but (b) otherwise they must make an application in accordance with Pt 23 if they wish to obtain judgment under r.3.5 (see r.3.5(5)). In the Marcan Shipping case the Court of Appeal held that, at the hearing of such an application, (a) the court's function is limited to deciding what order should properly be made to reflect the sanction which has already taken effect, and (b) the operation of the sanction does not lie in the discretion of the court, as it is only if there is an application under r.3.8 by the defaulting party that the court is required to consider whether, in all the circumstances, it is just to make an order granting relief from the sanction automatically imposed.

The Marcan Shipping case was cited in Kinsley v. Commissioner of Police of the Metropolis [2010] EWCA Civ 953; see further under r.3.9.

 

Rule 3.9 Relief from sanctions

3.9

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including—

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

© whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol (GL);

(f) whether the failure to comply was caused by the party or his legal representative;

(g) whether the trial date or the likely trial date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party; and

(i) the effect which the granting of relief would have on each party.

(2) An application for relief must be supported by evidence.

Effect of rule

3.9.1 This rule sets out the court's general discretion to give relief against any sanction imposed for failure to comply with any rule, practice direction or court order. The circumstances listed in r.3.9(1) are routinely referred to in cases where a party applies for an extension of time, having suffered a procedural sanction for their failure to comply with a time limit set by rule, practice direction or order (see para.3.1.2 above). The automatic stay imposed on claims under the transitional arrangements in the CPR (see para.51PD.19 below) is a sanction for the purpose of this rule (Woodhouse v Consignia Plc [2002] EWCA Civ 275; [2002] 1 W.L.R. 2558; [2002] 2 All E.R. 737, CA). The words "the witness may not be called to give oral evidence unless the court gives permission" in r.32.10 (Consequence of failure to serve witness statement) impose a sanction so that r.3.9(1) fall to be systematically considered (Priumus Telecommunications Netherlands BV v Pan European Ltd [2005] EWCA Civ 273).

Rule 3.9(1) lists various circumstances the court must consider. When considering an application for relief it is essential for courts to consider each matter listed in r.3.9(1) systematically in the same way that courts go systematically through the matters listed in s.33 of the Limitation Act 1980 [>>Text] when an application is made under that section (Bansal v Cheema [2001] C.P. Rep. 6; Woodhouse v Consignia Plc [2002] EWCA Civ 275; [2002] 1 W.L.R. 2558; [2002] 2 All E.R. 737, CA; R.C. Residuals Ltd v Linton Fuel Oils Ltd [2002] EWCA Civ 911; [2002] 1 W.L.R. 2782). The list is not exhaustive; the court must consider "all the circumstances". Thus, when considering whether to grant relief to a defendant, the court is entitled to consider the merits of the defence (Chapple v Williams [1999] C.P.L.R. 731.

In Khatib v Ramco International [2011] EWCA Civ 605 the Court of Appeal moderated the guidance previously given concerning use of the checklist by the court; the court must conduct an appropriate review and balancing exercise but need not mention expressly all of the circumstances in the list, assigning them to one side of the balance or the other.

n Kinsley v Commissioner of Police of the Metropolis [2010] EWCA Civ 953, the Claimant failed to serve copy documents under an order which provided that unless he did so by a specific date the claim would be struck out. Citing the Marcan Shipping case (see 3.4.4.1 above), the Court of Appeal proceeded on the basis that the claim had been automatically struck out and that the Claimant's subsequent application to adjourn proceedings did not stop time running under the unless order. However, by a majority, the Court of Appeal, held that it was appropriate to grant the Claimant relief from sanctions under r.3.9 given that it was possible that the Claimant believed that time under the order had been stayed pending the resolution of his application for adjournment of the claim. The Court of Appeal took into account the fact that the Claimant was a litigant in person in a claim which raised serious issues to be tried and the unless order was the first time that he had been directed to give disclosure of the documents in question. In considering whether or not to grant relief under r.3.9, Pitchford L.J. considered that there were three matters to be determined: [1] could there have been any legitimate doubt in the Claimant's mind what it was that he was expected to do under the unless order and the sanction which would follow if he failed to comply; [2] whether and for what reason he failed to comply; and [3] whether he had any reasonable excuse for not complying. The judgment of Ward L.J., which considered each paragraph of r.3.9 in turn, provides a useful illustration of how r.3.9(1) and its paragraphs may be considered without undue length.

It should be noted that r.3.9 comes into play, not merely where a party has failed to comply with any rule etc., but where a sanction is imposed as a result of that failure. No sanction is imposed, for example, where a party fails to comply with r.33.2(4)(a), a provision imposing a time limit for service of notice of intention to rely on hearsay evidence. Consequently, on an application to extend time in this context, neither r.3.8 nor r.3.9 applies (Cottrell v General Cologne Re UK Ltd [2004] EWHC 2402 (Comm); October 20, 2004, unrep. (Morison J.)).

The court has power under r.3.1(2)(a) to extend time for compliance with a court order, and the power under r.3.9 to grant relief from sanctions, even where the order had been made by consent; Pannone LLP v Aardvark Digital Ltd [2011] EWCA Civ 803. It was held that the fact that the order is made by agreement is one of the circumstances of the case to which the court is to have regard under r.3.9, and it may be an important factor, but it is not inherently decisive, so as to render it unnecessary and irrelevant to examine the other relevant circumstances. The weight to be given to the fact that the order was by consent would vary according to the nature of the order; for example, if it related to case management or to the disposal of the claim.

In CIBC Mellon Trust Company v Stolzenberg [2004] EWCA Civ 827 June 30, 2004, unrep., CA, Arden L.J. analysed carefully the various circumstances listed in r.3.9(1) and reviewed the authorities, particularly those dealing with non-compliance with "unless" orders. A significant feature of the case is that it involved an application under r.3.9 to set aside a judgment (not merely a procedural order) entered in default of compliance with an order of the court. In the context of r.3.9, a finding of intentional failure to comply with a rule is a highly significant and may or may not be decisive, depending on the circumstances of the case (Bournemouth & Boscombe Athletic Football Club Ltd v Lloyds TSB Bank Plc [2003] EWCA Civ 1755; December 10, 2003, CA).

When exercising the power under CPR r.3.9 to grant relief from sanctions for failure to comply with an unless order, the court should consider whether, at the time of the application for relief is heard, the unless order remains a proper order in the circumstances (Tarn Insurance Services Ltd v Kirby [2009] EWCA Civ 19, which also held that, in a case of deliberate and persistent non-compliance with orders to provide information and deliver documents made in order to safeguard proprietary claims, a proper administration of justice requires that, save in very exceptional circumstances, sanctions imposed should take effect).

In Momson v Azeez [2009] EWCA Civ 202, it was held (following CIBC Mellon, above) that the refusal to grant relief against a debarring sanction would not contravene art.6 of the European Convention on Human Rights provided that such refusal was proportionate and was for a legitimate purpose. The sanction which the court had imposed had the legitimate purpose of requiring the party to comply with an order of the court that had been made with a view to achieving a fair trial. Having decided that the party's non-compliance with the order (a disclosure order) meant that a fair trial was not possible, the judge (on the first appeal) concluded that a balancing of all the Pt 3.9 factors and a consideration also of the overriding objective required a decision that the defaulting party should not have been granted any relief against the sanction. The Court of Appeal held that that conclusion was Convention compliant and that any other conclusion would mean that litigants could with impunity avoid compliance with court orders made for the purpose of the holding of a fair trial.

As to the relevance of this rule in the exercise of the court's case management powers see Sayers v Clarke [2002] 1 W.L.R. 3095; [2002] 3 All E.R. 490, noted in para.3.1.2, above (Extending or shortening time limits); and Forcelux Ltd v Binnie [2009] EWCA Civ 854, noted in para.3.1.9, above (Court's power to vary or revoke an order).

Rule 3.9(2) states that an application for relief against sanctions must be supported by evidence. Such applications are normally made under Pt 23 with a witness statement in support. However, a failure to adduce supporting evidence is an irregularity only which the court has power to waive (see below, r.3.10 (General power of the court to rectify matters where there has been an error of procedure) and the commentary thereto). In Supperstone v Hurst [2008] EWHC 735 (Ch) (Floyd J.)) a detailed assessment of the respondent's bill of costs was made by a costs officer. The appellant argued that the respondent had failed to comply with a requirement to give adequate notice of funding in accordance with r.44.3B, the sanction for which is the disallowance of certain costs. The costs officer held that adequate notice had been given and that decision was taken on appeal to a costs judge. In his Respondent's Notice in the appeal, the respondent said that he would apply for relief from sanction if, on the appeal, the costs judge was against him on whether he had given adequate notice. A witness statement was also served indicating that an application for relief from sanction would be made. The costs judge held that there had been non-compliance with r.44.3B but granted the respondent relief against the sanction imposed by that rule. On a further appeal to a High Court judge the grounds of appeal included a ground directed at the fact that there had not been a separate application notice and witness statement in support. Lewison J. refused permission to appeal on that ground. (The subsequent decision of Floyd J. in Supperstone v Hurst is noted at para.44.3B.2, below.)

In Hayden v Charlton [2011] EWCA Civ 791, the claimants sued the defendants for libel in respect of allegations made on a website. The claimants failed to comply with directions or with subsequent unless orders and eventually the judge struck out the claim on the basis that the claimants had lost interest in it and to continue it would be an abuse. On appeal, the claimants were permitted to adduce evidence that they had not been kept informed by their then solicitors, despite their attempts to contact them, and they had not known the true position until after the strike out had been ordered. The Court of Appeal accepted that evidence as an important factor in favour of granting relief. However, it also took into account other factors, including the considerable burden the proceedings had placed upon the defendants, who were litigants in person. That hardship would have no remedy if relief was granted whereas the claimants would have an opportunity for redress against their former solicitors if the appeal was refused. Overall, it was held that the less unfair result was for the claim to stay struck out.

In Fung v Waitrose Ltd [2011] EWHC 1356 (TCC) relief was granted for errors made by a solicitor even though the order which had not been complied with was a consent order. A defendant was late in exchanging witness statements and agreed to a consent order striking out its defence if it failed to serve its witness statements in 14 days. That period ended on a public holiday when the court office was shut. The defendant's solicitor wrongly but genuinely believed that r.2.8(5) applied (see para. 2.8.4, above) and served the witness statements on the next working day afterwards. Taking that and several other factors into account Ramsey J. held that, although the courts are usually reluctant to alter the effect of a consent order, this was one of those rare cases when it was appropriate to do so.

 

Some essential bed time reading for you peebeeh, should assist you in being able to make an informed decision on the matter.

Kind regards

 

The Mould

Edited February 2, 2012 by The Mould
Paragraph spacing

[peebeeh]

Hello Andy and The Mould,

Thanks for that! I have scanned through it and picked up some useful points, will read more thoroughly later.

A lot of it concerns court orders that contain sanctions or consequences (unless clauses) if they are not complied with.

 

In my case, the claimant has not complied with a court order that gave him permission to amend his claim.

Not an act of disobedience - more an act of not taking an opportunity?

 

I have assumed that in these circumstances I am now responding again to the claim as it was originally pleaded?

 

I am not up against it for time yet, so I will probably sleep on the question of requesting Summary Judgment or not.

 

Andy, I can't see the mechanism whereby this would happen

(try to understand that CPR 3.4/5 will attain judgment without the need to request CPR 24)

I'm sure I must be missing something.

 

Many thanks,

P

[AndyOrch]

strike out applications

 

1.

 

In English litigation, courts have the power to remove the whole or part of a statement of case (traditionally referred to as a pleading). The power to do so may be exercised on the application of an opposing party in the litigation where (a) the statement of case (usually particulars of claim or a defence) does not disclose a cause of action, such that there is no reasonable ground for bringing or defending the claim, (b) the pleading does not contain a sufficient precise statement of the facts upon which the claimant relies, © inadequate reasons are given for a denial in a defence, or (d) the proceedings are an abuse of the process of the court.

The power to strike out may also be exercised of its own motion, without notice to the parties. Striking out particulars of claim and defences may also be ordered by courts as a measure to address repeated failures by a party to comply with case management directions, practice directions or other orders of the court.

Applications to strike out should be supported by evidence, unless the application is based solely on a point of law. The court is at liberty to treat a strike out application as one for summary judgment in order to finally dispose of issues that are unworthy of pre-trial processes and investigation. Such applications are properly brought prior to the filing of allocation questionnaires, and a defendant who files a defence on the merits in response to defective particulars of claim is at risk of being denied its application, as the application is inconsistent with defending the proceedings.

 

A court may be inclined to exercise its power to strike out the whole or part of a statement of case is where that statement of case discloses no reasonable grounds for bringing or defending a claim. Such cases include particulars of claim or a defence which:

1. do not set out facts indicating what the claim is about,
   
2. those which are incoherent and make no sense,
   
3. those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the other party or do not amount in law to a defence to the claim, and
   
4. are vexatious, scurrilous or obviously ill-founded. In making the assessment, the court will assume that each of the allegations pleaded are true.
   

When a strike out application is successful, either the proceedings are struck out in their entirety or some part of the pleading is struck out. A successful strikeout application may lead the court to enter judgment in favour of the other party, bringing an end to the issues and disputes before the court.

Strike out applications serve a similar purpose to summary judgment applications. Both types of applications are properly available in litigation which does not require full investigation and a trial. In respect to costs, the usual rule is the party whose statement of case has been struck out will be liable to pay the costs of the other parties involved in the litigation.

Edited February 3, 2012 by Andyorch

[The Mould]

Hello Andy and The Mould,

Thanks for that! I have scanned through it and picked up some useful points, will read more thoroughly later.

A lot of it concerns court orders that contain sanctions or consequences (unless clauses) if they are not complied with.

 

In my case, the claimant has not complied with a court order that gave him permission to amend his claim.

Not an act of disobedience - more an act of not taking an opportunity?

 

I have assumed that in these circumstances I am now responding again to the claim as it was originally pleaded?

 

I am not up against it for time yet, so I will probably sleep on the question of requesting Summary Judgment or not.

 

Andy, I can't see the mechanism whereby this would happen

(try to understand that CPR 3.4/5 will attain judgment without the need to request CPR 24)

I'm sure I must be missing something.

 

Many thanks,

P

 

Good evening peebeeh

 

I have not read through your case from the first post in order to refresh my memory of it.

 

I would say that CPR Part 24 for Summary Judgment is not required, as per above postings, upon the request for strike out CPR r.3.5 will come into effect, simply state in the application that the Defendant believes

that the Claimant has no real prospect of succeeding with his claim because...........(state the reason(s)), therefore, the Defendant respectfully requests Judgment in his favour under CPR r.3.5 and costs incurred in Defending the claim.

 

In an action for Summary Judgment, the Claimant will have an opportunity to respond to such and oppose, in this regard; I would advise you to refrain from providing the Claimant with an avenue to extend the proceedings.

 

I will try and read through you case from the start later on this night and see the full picture of the proceedings as of the date hereof, then post up any further comments/advice that may be of use.

 

Kind regards

 

The Mould

[The Mould]

Peebeeh

 

It would appear that the Claimant has not substantiated his claim, RE: Guarantee Agreement signed by you in the capacity of a private individual and thereby liable for Company’s debt(s). (Statute of Frauds 1677)

 

His Particulars of Claim (statement of case) discloses no reasonable grounds for bringing the claim against you, see CPR r.3.4(2)(a).

 

You could argue Nomura International Plc v Granada Group Ltd [2008] (see below) in your strike out application whereby you aver that the claim is an abuse of process.

 

Further to the above, without service of particularised Particulars of Claim, you cannot possibly plead a Defence, in this regard; your right to a fair trial is being hindered by the Claimant’s filing of a claim that is not only vague in its nature but also appears to be absent of reality, therefore, the claim is bad in law and the sooner it is struck out the better.

 

Can you post up your filed and served Defence to the claim, it seems that the Claimant having required sight of the same, sought leave to amend his statement of case against you, which of course he did not undertake and under the terms of the order the time-scale for such amendments has now passed, so, have you received any notice from either the court or the Claimant as to the status of these proceedings?

 

Is the case Fast Track (or indeed, have Allocation Questionnaires been served)? The matter could well be stayed.

 

Have a read of the contents below peebeeh;

 

Other forms of abuse

3.4.3.6 It is an abuse of process to bring by an ordinary claim proceedings which should normally be brought by judicial review in order to take advantage of the longer limitation period in ordinary claims (Clark v University of Lincolnshire and Humberside [2000] 1 W.L.R. 1988, CA, obiter, and see Carter Commercial Developments v Bedford BC [2001] 34 E.G.C.S. 99, QB).

In Stoke on Trent Council v Walley [2006] EWCA Civ 1137; [2007] 1 W.L.R 352; [2006] 4 All E.R. 1230 the claimant applied under r.3.4(2) to strike out a defence denying liability on the ground that it amounted to a withdrawal of a pre-action admission. In the Court of Appeal it was held that for a claimant to show that the withdrawal of a pre-action admission would amount to an abuse of process, it will usually be necessary to show that the defendant has acted in bad faith. In order to show that the withdrawal was likely to obstruct the just disposal of the case, it would usually be necessary for the claimant to show that they will suffer some prejudice which will affect the fairness of the trial. (As to the withdrawal of admissions made before commencement of proceedings, or of admissions made after commencement of proceedings, see r.14.1A and r.14.1(5), respectively.)

 

In Nomura International Plc v Granada Group Ltd [2008] Bus. L.R.1 (Cooke J.), the judge struck out a claim on the basis that it was an abuse of process for the claimant to issue a claim form in the absence of knowledge of any basis for a claim and the inability to formulate a claim at the time of issue. The claimant had issued the claim form to protect its position on limitation in the context of a potential claim against it by a third party. The judge found that the claimant at the time of issuing its claim form was not in a position to do the minimum necessary to set out the nature of the claim (as required by r.16.2(1)) and was seeking an illegitimate benefit, namely the prevention of further time running under the Limitation Acts for a claim it could not properly identify or plead. Given that the very commencement of proceedings was an abuse of process, the judge held that striking out was the only proper sanction. Similarly, in Pickthall v Hill Dickinson LLP [2009] EWCA Civ 543; [2009] P.N.L.R. 31 it was held to be an abuse of process for a claimant to start proceedings in respect of a cause of action which was not vested in him in the hope that it would be assigned to him later.

 

Kind regards

 

The Mould

[peebeeh]

Good Morning Andy and The Mould,

[ATTACH=CONFIG]33168[/ATTACH]

Thank you for all of your information and advice. I have removed the request for SJ from the Draft documents.

I have inserted in its place a simple request for Judgment.

[ATTACH=CONFIG]33167[/ATTACH]

Please will you cast your eyes over the attached docs and advise if you think I have said sufficient.

Many thanks

P

[AndyOrch]

Are you ok with this now Peebee?

 

Being litigant in person you are not expected to know the CPR by heart and which PD to state in you request to SO.The obvious advantages of the one I and the Mould stated is so there is no escape route for the claimant.I would just state pursuant to CPR 3.5 end of.You can refer to CPR 3.4 but it may allow further chance for them to set a side your application and CPR 24 allows them to object and challenge. CPR 3.5 allows no come back you are simply endorsing the order of the DJ which they have failed to comply with and the Court will in its own way strike out using its own initiative.Very difficult for them to challenge that one IMHO.Get that application in today !!!!!

 

Regards

 

Andy

Edited February 3, 2012 by Andyorch

[AndyOrch]

You need to change Q3 to CPR 3.4 and 3.5

 

and add :- The Claimant as failed to comply with the Order dated xxxxxx by DJ xxxxxxx to re plead their case and amend their statement of case by the xxth xxx xxxxx.

[peebeeh]

I will add that