In Edmunds v Newell & Anor [2020] EW Misc 7 (CC) HHJ Jarman QC refused a claimant’s application for relief from sanctions. The claim was struck out but the counterclaim continued.
THE CASE
The claimant claimed £110,599.99 plus interest and damages for unpaid service charges. The proceedings had been adjourned to allow the Leasehold Valuation Tribunal to determine issues relating to the reasonableness of the charges and whether a breach of covenant had taken place. The Tribunal decision was largely adverse to the claimant.
The Circuit Judge in the county court then made an order in November 2019:-
“AND UPON the Court further noting that:
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The Claimant has failed to comply with the directions made on the last occasion to file a case summary and draft directions
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The claimant is unable to explain to the court’s satisfaction which parts, if any of the claim remained for determination once the wall works and breach of covenant claims are removed since the claim for house works in the county court proceedings and in the tribunal appear to be based on the same quotation but for different amounts (£65,766.66 in tribunal proceedings, £79,919.99 in the county court proceedings)
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The Court cannot carry out proper case management of the remaining issues for trial without proper consideration being given in advance of the hearing as to what the parties consider the remaining issues are”
The matter came before HHJ Jarman QC in April 2019 when the claimant had not complied with the earlier orders.
“It was when the matter came back before me on 30 April 2019, when Mrs Edmunds was represented by her solicitor William Williams, that I made the order referred to above. I also ordered the documents ordered to be filed by Judge Petts on 4 November 2019 should be filed by 7 May 2020. In paragraph 5 of the order it was made clear that on the hearing of any application for relief from sanctions, irrespective of subsequent compliance with that order, the court would consider using its case management powers to strike the claim out.”
THE JUDGE’S CONCLUSION ON THE RELIEF FROM SANCTIONS APPLICATION
29. When the application for relief from sanctions came on for hearing, Mr Williams again represented Mrs Edmunds, and Mr Newell represented himself. When I asked Mr Williams how paragraph 9 of the written explanation (where it is said that £23,118.85 is due from Mr Newell in respect of those works set out in the Litespeed quote said to have been completed) sits with paragraph 12 (where it is said that £77,586.64 is due), his answer was to the effect that he would have to check and he also referred to the possibility of further amending the particulars of claim.
30. In my judgment it is not satisfactory that even now, some eight months after the tribunal decision, and after the hearing of these proceedings has been vacated on two occasions because of that decision and the subsequent application for permission to appeal, it is still not clear which sums are claimed from Mr Newell or why. Any defendant is entitled to know precisely which sums are claimed and on what basis, and this is certainly no less an entitlement where the defendant is a litigant in person.
31. Dealing with the application in accordance with the three stage test set out in Denton v TH White Ltd [2014] 1WLR 3296, Mr Williams realistically accepts that the failure to comply with the orders of 4 and 12 November 2019 is a serious and significant breach. In my judgment that is a proper concession. Although the former order did not refer expressly to the sanctions for non-compliance, it made clear that the court could not carry out proper case management without knowing what the remaining issues are. It is also noteworthy that the order itself expressly refers to previous non-compliance with court orders by Mrs Edmunds.
32. As for the reasons for the breach, Mr Williams submits that he believed that the former order had been superseded by the later and could not have been complied with until the appeal to the Upper Tribunal had been concluded, which happened on the 29 January 2020. However, that does not explain why the order was not then complied with and why it had not been complied with when I raised the matter in April. Again, Mr Williams realistically accepts that this explanation may not be a good explanation for the breach, and I agree.
33. As for all the circumstances of the case, Mr Williams submits that the breach has now been rectified and Mr Newell has not been prejudiced. I do not accept that submission. As indicated in paragraph 30, in my judgment it is still not clear precisely what sums are claimed from Mr Newell or the precise basis on which they are claimed. These issues remain obscure and/or subject to inconsistencies and further amendments to the amended particulars of claim are likely to be necessary to plead these matters properly.
34. However, the matter does not stop there. Although the tribunal found that Mr Newell did agree to the works set out in the Litespeed quote, it also found that Mr Edmunds’ evidence that he had decided not to redevelop lacked any credibility, and that there was no genuine intention to carry out the works in the original Litespeed quote.
35. CPR rule 3.9(1) in requiring me to have regard to all the circumstances of the case so as to deal justly with the application, specifically includes the need for litigation to be conducted efficiently and at proportionate costs and to enforce compliance with rules, practice directions and orders. I have already referred to the fact that the 4 November 2019 order referred to a previous failure on the part of Mrs Edmunds to comply with directions to file a case summary and draft directions. That was not the first failure. By application dated 5 April 2018, Mrs Edmunds had to apply for relief from sanctions because she had not exchanged her witness statements by 3 November 2017 as ordered on 4 September 2017. HH Judge Harrison granted relief by order dated 23 April 2019 and extended time to serve witness statements until 30 July 2018. The failure to comply with Judge Petts’ order of 4 November 2019 was the third, and in my judgment the most serious in a series of failures to comply with court orders. It shoes a pattern of inefficiency, unnecessary delay and unnecessary costs.
36. In my judgment that has been compounded by the decision on behalf of Mrs Edmunds to make applications to the tribunal in July 2019 which involved substantially similar issues between the parties as in the present proceedings.. It is difficult to see how it can be said that running the two sets of proceedings in parallel, to use the wording of the tribunal, could promote the objective of efficiency or cost proportionality.
37. Furthermore, the present application for relief was not made promptly. It should have been made, at the latest in February 2020 when the decision of the Upper Tribunal refusing permission to appeal was finalised. It was not made for a further three months and only then after it was raised by the court.
38. In my judgment there has been a marked and ongoing failure on the part of Mrs Edmunds to conduct these proceedings efficiently or at proportionate cost.
39. Although the 4 November 2019 order did not spell out the sanction for non compliance, it was made clear on his face the difficulty which the court faced in managing these proceedings without compliance. It may well be possible for directions now to be given to attempt to manage the proceedings to trial, but in my judgment the delay and the extra costs and the lack of clarity which has already occurred is such as to make it unjust to do so, and gives the court little confidence that justice is likely to be achieved by allowing the claim to proceed. I have to consider whether to refuse relief would be a proportionate response to those failures, and whether partial relief is appropriate. I have come to the conclusion taking all the above matters into account that Mrs Edmunds has had ample opportunity to put her case in order and has failed to do so and that relief from sanctions should not be granted. It my judgment it is proportionate that the claim should be stuck out.
40. In the alternative, as a result of the conduct and failure to comply with court orders set out above, I would hold that the statement of case ought to be stuck out under those CPR 3.4(1) or under the inherent jurisdiction of the court. In my judgment those matters render further proceedings on the claim unsatisfactory and jeopardises the fairness of hearing the claim, so as to amount to an abuse.
41. That leaves the counterclaim, whereby Mr Newell pleads that in March 2016 in breach of his landlord’s covenant for quiet enjoyment Mrs Edmunds demolished a conservatory forming part of his flat, dug foundations and erected steel uprights on his demised property and caused other damage thereto. Directions should now be given in respect of hearing of the counterclaim. The parties should attempt to agree those directions and any consequential matters arising from this judgment. A draft order and/or written submissions should be filed by the parties within 14 days of hand down on any matter which cannot be agreed, and I will then make a determination of such matters on the basis of those submissions.
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