CASE STRUCK OUT BECAUSE OF A FAILURE TO ARRANGE A TELEPHONE HEARING: WHAT HAPPENED NEXT AND WHAT WOULD HAPPEN NOW?

JONES –V- WEALTH MANAGEMENT (UK) LTD (2014) Ch D (Arnold J) 12/02/2014

This case is reported briefly on Lawtel today. It concerns an application for relief from sanctions in insolvency proceedings. The relief from sanctions application was made prior to April 2013 the old CPR 3.9 applied.  The commentary below is based on a Lawtel Summary. Further, more detailed commentary will be given once the transcript is available.

THE FACTS

During proceedings the judge ordered that the case management conference was adjourned and that the re-adjourned hearing would be by way of a telephone conference, which the claimant would arrange after receiving a notice of hearing.

The court sent the parties a notice of hearing of the restored case management hearing, but the notice bore the wrong claim and did not mention the parties’ names. As a result the claimant failed to make arrangements for the hearing.

The judge struck out the claimant’s claim as a result of his failure to arrange or attend a telephone conference. He also refused his application for relief from sanctions on the basis of the claimant’s conduct.

THE CLAIMANT’S ARGUMENTS

The Claimant appealed the judge’s decision and made the following arguments:

(1) The judge approached the matter on the wrong basis because the trigger event for the striking out was not an unless order but a failure to attend the case management hearing.

(2) The judge failed to consider the fact that the defendant had equally failed to attend the hearing.

(3) The judge erred in his approach to the factors under CPR 3.9 (1).

(4) The judge failed to consider whether to impose a less draconian remedy, or whether striking out was a disproportionate response.

(5) The judge made several, unsupported findings, particularly concerning the amount of delay that could be attributed to the claimant.

THE DEFENDANT’S ARGUMENTS

The defendant argued that the judge’s decision to strike out the case was one that fell within the ambit of his discretion. They also argued that several of the arguments for relief relied upon by the claimant had not been raised before the judge. Therefore it would not be legitimate to criticise the judge for failing to consider them.

 THE COURT’S DECISION

It was held that the judge’s decision was robust and unfair.  The exercise of his discretion was flawed for all of the reasons argued by the claimant and relief from sanctions should have been granted. The judge had failed to consider the claimant’s explanation for his non-attendance and had failed to consider the interests of the administration of justice.   The case was reinstated.

COMMENT

Telephone hearings can cause all kinds of technical problems.  I have been instructed in a case where an action was struck out for failure to arrange a telephone hearing (but which was subsequently reinstated).  However all of this was pre-Mitchell.  Post-Mitchell a failure to arrange a hearing could well come within the definition of “well-intentioned incompetence”.