CASE NOT STRUCK OUT BECAUSE OF A FAILURE TO FILE TRIAL BUNDLE & PAY COURT FEES

November 3, 2014 · by · in Appeals, Applications, Avoiding negligence claims, Civil Procedure, Costs, Relief from sanctions

One of the most read posts on this blog was, in the middle of the Mitchell Madness period, when a judge struck out an action because the trial bundle had been lodged late.  This issue was considered by Hickinbottom J in Abdulle -v- Commissioner of Police for the Metropolis (30/10/14) a case reported briefly on Lawtel this morning. This reflects the more nuanced approach to breaches and sanctions that exists as a result of Denton.

 THE FACTS

The claimants were late in filing pre-trial checklists, paying to pay teh court fees and failing to prepare a trial bundle. The defendant applied to strike out the claim. The trial window went by.  The listing office attempted to serve a notice of default by fax.  At first instance the court refused to strike out the claim as there was insufficient evidence to show that the default had been transmitted to the claimant. It ordered that the claimants pay the costs of the application, the claimant failed to pay those costs.

The defendant appealed.

ON APPEAL

  • The claimants’ arguments relying on the court’s failure to serve a notice of default had no merit. The claimants could not rely on their own wrong-doing.
  • The CPR clearly imposed obligations to file the checklist and pay the hearing fees.
  • Even when no notice was served by the court the claimants were in breach.
  • The payment of court fees was mandatory and parties should pay them when they were due, not only after being pressed to do so.
  • The claimants argument that they had not known when to file the trial bundle was not acceptable.
  • When there was a short period where the trial was set the date for filing the trial bundle was calculated from the first date of the breach.

Considering all the circumstances of the case, however, it was not appropriate to strike out the claim.

  • The behaviour of the claimants’ solicitors was worthy of real criticism.
  • However the case was ready for trial and it was not insubstantial.
  • The appropriate course was to allow the claim to proceed but to stay it until the claimants had paid the outstanding costs order, failing which the claim would be automatically struck out.
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