COCKELL –v- HOLTON AND MISLEADING HEADLINES: IT WASN'T THE WRONG EMAIL ADDRESS THAT KILLED THE COUNTERCLAIM
There are many reports in the legal press that deal with the relief from sanctions issue in Cockell -v- Holton (No 2)  EWHC 1117 (TCC). Many of these concentrate upon the initial failure to lodge the pleading at court because of an mistake in the email address. Consequently the headlines (and in some cases the text) are misleading. It was not just the failure to serve at the correct address that led to relief from sanctions being refused. The fact was that the document that was (or should have been) filed was itself wholly defective. It was these defects that led to relief from sanctions being refused.
THE MISTAKE IN THE EMAIL ADDRESS
The judge had ordered that an amended defence and counterclaim be served and filed by the 20th March 2015. The defendant served an amended pleading on time. However the address was mistyped in the email to the court. Consequently the defence and counterclaim were automatically struck out.
WHAT THE JUDGE SAID ABOUT THE EMAIL MISTAKE
This, is perhaps, the important observation.
“If error in the typing of the email address had been all that had happened, one would not have expected an application for relief from sanctions to be opposed.“
THE PRIMARY REASON RELIEF FROM SANCTIONS WAS REFUSED
The reason relief from sanctions was that the amended defence and counterclaim were inadequate. This point was taken up by the judge:-
“… when reading the papers prior to the hearing it seemed to me that, in the form served, the Amended Defence and Counterclaim fell well short of compliance with Akenhead J’s order so far as the degree of particularisation was concerned. At an early stage in the hearing I made this clear to Mr. Bourne and, indeed, demonstrated this by reference to one paragraph in the pleading.”
Consequently the defendant produced a new amended defence and counterclaim and had to accept that the amended pleading, as originally served, did not “… condescend to the particularity required at trial.”
THE PRIMARY ISSUE WAS THE DEFECTIVE PLEADING
- In the light of my analysis of the proposed Counterclaim I consider that the proposed amendments fall far short of the degree of particularisation and clarity that was necessary in order to comply with Akenhead J’s order of 12 December 2014. In those circumstances, even if the amended Counterclaim had been filed in time, the Defendant would still not have complied with the order. It is therefore not correct to say, as Mr. Bourne submitted in his skeleton argument, that an amended Defence and Counterclaim that complied with the order of 12 December 2014 was served on the Claimant in time….
- I therefore conclude that this was not just a technical breach as a result of a failure to file the document with the court in time, but a serious and substantial breach of the terms of Akenhead J’s order. It cannot be dismissed as anything approaching trivial or de minimis. Further, I consider that the events of March 2015 cannot be considered in isolation: as Mr. Webb pointed out, the Defendant had been in breach of Akenhead J’s order for some two months. I consider that this is an example of a case where the persistent failure to serve the re-pleaded Counterclaim after 21 January 2015 is a factor that can be taken into account at the first stage: see Denton, paragraph 27. However, in this case it probably does not matter very much whether it is considered at the first stage or at the third stage.
HOWEVER THE HEADLINES STILL HAVE SOME VALID POINTS: BE TOTALLY CERTAIN YOU HAVE SERVED PROPERLY
Whilst the headlines may be inaccurate in suggesting that late service was the reason relief from sanctions was refused they do make valid points.
- It is “extremely unwise” (to put it mildly) to leave the filing of documents in response to a peremptory order to the last minute.
- If you are filing and serving documents in relation to a peremptory order give yourself time to make sure that they are sent properly and ensure that you get confirmation that they have arrived.