CLAIMANTS HAD COMPLIED WITH PEREMPTORY ORDER: CASE NOT STRUCK OUT

November 20, 2014 · by · in Appeals, Applications, Avoiding negligence claims, Civil Procedure, Relief from sanctions

There is a brief report on Lawtel of the case of Sharma -v- Quality Redfern Solicitors (Ch D Judge Behrens 19/11/2014). The decision concerns the striking out of a claim for breach of an order and the judge finding, on appeal,  that the original peremptory order was no longer necessary.

THE CASE

This was a claim brought by executors against solicitors.  Another party to previous proceedings (W) was also a claimant in the action.

  • The executors then sought to join W as a defendant.
  • The district judge ordered the claim be struck out unless the  executors explained how W could be a defendant when she was already a claimant.
  • The executors wrote to the district judge stating that they now considered that their application was unnecessary and withdrawn.
  • The judge struck out the executors’ claim on the basis that his questions had not been answered.
  • An application to set aside the order was refused on the basis that the failure to answer the questions was a breach of the unless order.

ON APPEAL

On appeal Judge Behrens found:

  • The executor’s response that they were no longer pursuing the application was a perfectly satisfactory answer to the judge’s order.
  • There was considerable force in the submission that the original unless order had been disproportionate.
  • The original order had not been appealed, presumably because it was cheaper to comply.
  • The executors had complied in withdrawing the application.
  • When the application had been withdrawn it became totally unecessary to state why they wanted to join W.
  • The purpose of the order had been to determine the nature of the application. Withdrawing the application had answered this.
  • The order striking out the claim could not stand.

MAKING PEREMPTORY ORDERS

In Denton the Court of Appeal emphasised that peremptory orders should be made sparingly.

44. We should also make clear that the culture of compliance that the new rules are
intended to promote requires that judges ensure that the directions that they give are
realistic and achievable. It is no use imposing a tight timetable that can be seen at the
outset to be unattainable. The court must have regard to the realities of litigation in
making orders in the first place. Judges should also have in mind, when making
directions, where the Rules provide for automatic sanctions in the case of default.
Likewise, the parties should be aware of these consequences when they are agreeing
directions. “Unless” orders should be reserved for situations in which they are truly
required: these are usually so as to enable the litigation to proceed efficiently and at
proportionate cost. 

THE EXECUTORS HAD COMPLIED WITH THE ORDER IN THE CURRENT CASE

However, on the basis of the brief report we have, this does not appear to have been a case of relief from sanctions. Rather it was a case where the executors had been found to have complied by withdrawing the application upon which the questions and the original order were based.  The original order of the court may have been reasonable. Compliance with the order took place when the application was withdrawn.

ALSO ON THIS POINT

Case Management after Denton: Directions and Court Orders should be “Realistic and Achievable”.

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