In the judgment today in  Schenk -v- Cook [2017] EWHC 144 (QB) Mr Justice Green upheld an order refusing relief from sanctions. However the appeal was heard in unusual circumstances. The judge considered the application for relief from sanctions striking out a defendant’s claim after he had decided the case on the merits.


  • The defendant’s breach of a peremptory order which ordered disclosure was serious and significant. It came after a series of defaults which led to the order being made.
  • There was no good reason for the default. The defendant understood what was being ordered.
  • There was no other reasons which justified the exercise of the court’s discretion.


The claimant alleged that he had been the victim of a sophisticated fraud.  There were a number of defendants. The fourth and sixth defendants were, in fact, one person – Mr Bawany. His defence had been struck out by the Master as a consequence of failing to comply with an unless order.  Mr Bawany appealed.  He was allowed to take part in the trial, without prejudice to the position upon appeal.  The judge found that Mr Bawany was liable to the claimant on the merits.  However he also addressed Mr Bawany’s appeal. (This unusual procedure makes sense if you read the entire judgment).


The judge found that the Master had not erred in finding that Mr Bawany was in breach of a peremptory order. He then considered whether relief from sanctions should be granted.

“viii) Relief from sanction
  1. I have found that the Master did not err in concluding that there had been a breach of the Unless Order. The next stage of the analysis is to consider whether Mr Bawany should be given relief from the sanction of the striking out of his defence and the entering of judgment in favour of the Claimant.
  2. The basic test to be applied: The basic test for r elief is now well established. It is laid down in CPR Rule 3.9 and was elaborated upon in the judgments of the Court of Appeal in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 (” Mitchell“), and, Denton v TW White Limited [2014] EWCA Civ 906 (” Denton“). CPR 3.9 provides as follows:
“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 of the case, so as to enable it to deal justly with the application, including the need:
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence”.
  1. The Court of Appeal first gave guidance as to the approach which should be adopted by courts in circumstances such as the present in paragraphs [40] and [41] of Mitchell. This however led other, inferior, courts to apply the rules in, what turned out to be, a draconian manner and in ways which suggested that lower courts had misunderstood the message sought to be conveyed in Mitchell. In Denton the Court of Appeal took the opportunity to clarify the principles to be applied. It made clear that a court should address the issue before it in three stages. Paragraph [24] ofDenton describes the three stages:
“The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice, direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.
  1. The materiality of the breach/assessment of underlying merits: The materiality of the breach is also, at least to some degree, relevant. The Supreme Court in Global Torch Limited v Apex Global Management Limited (No.2) [2014] UKSC 64 (” Global“) has made clear that in ordinary cases a court will not be required to undertake an assessment of the underlying merits, nor would it be appropriate to do so (see paragraphs [29] and [30] per Lord Neuberger). However, this is not an absolute rule. Lord Neuberger, in paragraph [31] stated thus:
“In principle, where a person has a strong enough case to obtain summary judgment, he is not normally susceptible to the argument that he must face a trial. And, in practical terms, the risk involved in considering the ultimate merits would be much reduced: the merits would be relevant in relatively few cases, and, in those cases, unless the court could be quickly persuaded that the outcome was clear, it would refuse to consider the merits. Accordingly, there is force in the argument that a party who has a strong enough case to obtain summary judgment should, as an exception to the general rule, be entitled to rely on that fact in relation to case management decisions.”
  1. In Joshi &Welsh Ltd v Tay Foods [2015] EWHC B6 (QBD) (” Joshi“) at paragraphs [26] – [29] the Court sought to balance the need to ensure adherence to procedural rules with the need to consider the merits of the claim were relevant, especially if the effect of refusing relief was that it led to judgment:
“26. Viewed in this light, the violation upon which the judge entered summary judgment was a violation rooted in appearance only but not in substance. When the judge said that it exerted minimal effort upon the proceedings it would have been better to describe the effect as virtually non-existent. I have in this regard considered the observations of the judgment of the Master of the Rolls and of Vos LJ in Denton at paragraph 26 on the relevance of materiality. In that case the court stated as follows:
‘… we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant. It was submitted on behalf of the Law Society and Bar Council that the test of triviality should be replaced by the test of immateriality and that an immaterial breach should be defined as one which “neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation”. Provided that this is understood as including the effect on litigation generally (and not only on the litigation in which the application is made), there are many circumstances in which materiality in this sense will be the most useful measure of whether a breach has been serious or significant. But it leaves out of account those breaches which are incapable of affecting the efficient progress of the litigation, although they are serious. The most obvious example of such a breach is a failure to pay court fees. We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance. We recognise that the concepts of seriousness and significance are not hard-edged and that there are degrees of seriousness and significance, but we hope that, assisted by the guidance given in this decision and its application in individual cases over time, courts will deal with these applications in a consistent manner.’
  1. In my judgment, the Court of Appeal was, at least in some degree, endorsing a test of materiality as a useful guide in determining the seriousness and significance of a violation. Of course, the other side of the coin has to be acknowledged. Rules exist for good reason. Non-observance can create adverse ripple effects in the administration of the court service which litigants are rarely cognisant of. The High Court has repeatedly emphasised the real and practical importance of strict observance of procedural rules on a number of recent occasions: see, for example, Akciné Bendrové Bankas Snoras v Antonov & Yampolskaya [2015] EWHC 2136, paragraphs 20 and 21. However, whilst in no way under-playing the importance of observance of the rules in Denton, the Master of the Rolls and Vos LJ were, at the end of the day, anxious to emphasise that the CPR was not to be used as a tripwire (see paragraph 37). The Court of Appeal stated as follows at paragraph 38:
‘It seems that some judges are approaching applications for relief on the basis that, unless a default can be characterised as trivial or there is a good reason for it, they are bound to refuse relief. This is leading to decisions which are manifestly unjust and disproportionate. It is not the correct approach and is not mandated by what the court said in  Mitchell: see in particular para 37. A more nuanced approach is required as we have explained.'”
  1. Defendant’s submission: I shall start with the Fourth and Sixth Defendants’ submissions. At the hearing before the Master, the Defendant, who had previously dispensed with his counsel, represented himself. He has however served a detailed Notice of Appeal, which clearly has had some legal input. There is no attempt to differentiate the various heads in Mitchell and Denton. The points are all rolled up together. I summarise the main points below:
  2. a) Mr Bawany is a litigant in person. He is drawing his pension and is in ill health.
  3. b) The Claimant has been ruthless in seeking documents.
  4. c) The Claimant has however failed on multiple occasions in complying with his own duties and obligations. Mr Bawany has hitherto applied to strike out the Claim on the basis that it was frivolous, had no merit, a scam, and based upon extortion and that prior orders (such as the freezing orders) had been obtained by deception and extortion.
  5. d) The extent of the disclosure obligation imposed upon the defendants was unreasonable.
  6. e) The Court in Mitchell had made clear that the Courts should no longer treat non-observance with court orders as optional. Nonetheless the Court did not do away with the principle of proportionality and Article 6 ECHR still had to be observed.
  7. f) The Master did not apply Mitchell and acted disproportionately and violated the Defendants’ right to a fair trial.
  8. g) The law should not amount to a series of ” trip wires” for the unwary: citing Aldington v ELS International Lawyers LLP [2013] EWHC B29 (QB).
  9. h) Given that the effect of not adhering to the Unless Order was that judgment was entered against the Fourth and Sixth Defendants the consequence of not granting relief was ” draconian“.
  10. i) The Fourth and Sixth Defendants were given no prior warning that the draconian sanction would be imposed.
In the Fourth and Sixth Defendants’ Skeleton there is no actual engagement with the specific reasons given by the Master for her finding that there has been non-adherence to the Unless Order. There is hence no analysis as to whether the failures were material or peripheral.
  1. Stage 1: Seriousness: In my judgment the failings are serious. It suffices to set out briefly the reasons which lead me to this conclusion. First, the failures represent the culmination of a series of repeat defaults which ultimately justified the Master in imposing the Unless Order. I have set out the history. This was not a “one – off”. Second, the defaults were not trivial but related to potentially central matters in dispute. Third, I have had regard to the overall merits of the case. In Global ( ibid) the Supreme Court emphasised that normally but not inevitably the merits were irrelevant. In Joshi on very particular facts I observed that the extent to which the merits would be taken into account in a given case was fact sensitive. In some cases, in order to decide an application it might be relatively easy and straightforward to form a view; and in other cases it might be very difficult. The facts of this case are complex. There is therefore a substantial limit as to the extent that it would be possible or appropriate on a summary basis to form a view on the merits. Nonetheless given the way in which the trial came to be conducted I have in fact been able to form the conclusion that the merits lie with the Claimant and against the Defendants. I should add that because of the way this trial unfolded my taking into account of the merits in this case is not a precedent for other cases on this point.
  2. Stage 2: Reasons: I address briefly some of the Defendants’ points. First, it is said by Mr Bawany that he was given no warning about the Unless Order and/or the consequences of not adhering to it. I do not accept this submission. Both the Claimant and the Fourth and Sixth Defendants have in the course of this litigation served a series of applications and counter applications. The Fourth and Sixth Defendants, Mr Bawany, has himself sought to attack the claim. I can detect no lack of sophistication in the approaches of the parties and I can see no basis upon which it could be sensibly or credibly argued that any party was unaware of the consequences of actions pursued by or against them. Second, it is said that the Claimant has acted badly throughout. It is true that Mr Bawany has made a number of applications to Court alleging a range of misconduct by the Claimant. However, these applications have been dealt with and invariably rejected by the Court. Whether Mr Bawany agrees with the course taken by the Court or not is immaterial since the fact remains that this case is not about the Claimant’s conduct but about the Fourth and Sixth Defendants non-adherence to an Unless Order.
  3. Stage 3: Assessment of all the circumstances: There are no circumstances over and above those I have already identified which need to be taken into account. Insofar as the merits are relevant these favour the Claimant.”