RELIEF FROM SANCTIONS NOT GRANTED AFTER A NINE YEAR DELAY

In Francis v F Berndes Ltd & Ors [2021] EWHC 2350 (Ch) Deputy Master Linwood dismissed the claimant’s application to resurrect an application to amend which had been made nine years previously.

THE CASE

The claimant brought an action unjust unrichment. In  2011 an order was made giving the claimant an opportunity to apply to amend his case By 5th January 2012 to show that he an an arguable action.  The claimant was also ordered to pay costs (which were never in fact paid). The claimant made an application in January 2013 in the action which was dismissed.

The claimant made an application in July 2020 that an earlier application (which he said had been listed in 2013) be re-listed and he be given permission to amend his particulars of claim and file and serve further evidence.

The Master did not accept the argument that any steps had been done to comply with the January 2012 deadline. The issue, therefore, was whether relief from sanctions should be granted to allow the claimant’s application to proceed.

RELIEF FROM SANCTIONS

The Master held that relief from sanctions should not be granted.  Amongst other things the delay had caused consideration prejudice to the defendant.

1. 1. I accept Mr Bogle’s submission that I should not leave the matter there. I now therefore must turn to Issue 2, the claimant’s application for a retrospective extension of time, even though there is no application for that before me. As to that I must, as counsel agree, apply the Denton principles for such a retrospective extension of time: see CPR 3.9(15).

(1) Is this a serious and significant breach?

1. 1. I consider the failure to comply with the order of Henderson J cannot be anything other than a serious and significant breach. Mr Bogle submits it is not serious in context. I disagree. Any breach of a direct order in such circumstances must be serious and significant, especially at the end of a primary limitation period.

(2) What is the explanation?

1. 1. The claimant says at paragraph 217 in his third witness statement:

“I would like to address the reasons why I have been unable to progress my claim until now. In summary and in general terms the reasons may be listed as follows:

(a) lack of funds;

(b) an absence of legal representatives willing to take on the case until now;

(c) my fear and belief I may not be able to get relief at all;

(d) my discovery after encountering my present lawyers that I may still be able to proceed with my claim and the need to locate and recover documents; and

(e) other factors that have delayed me getting to this stage.”

1. 1. That appears to be the explanation for this substantial, indeed until the application was issued, eight-and-a-half year delay. As to (a), the lack of funds, I do not think impecuniosity is a good reason not to progress the matter – see in particular R (Hysaj) v The Home Secretary [2015] EWCA (Civ) 1633.

1. 1. As to (b), the absence of legal representatives, there is no correspondence produced by the claimant showing attempts to obtain legal advice. As to (c) namely his fear that he may not be able to get relief and (d) the discovery he may still be able to proceed some time later, I do not think that this is a good explanation for delaying for so long, particularly as at the start of that period, it appears he did have the advice of counsel. I would add that not proceeding until he had solicitors who could address the claim is not a good explanation. It could mean, if he was correct in that, that time is open-ended, which must be wrong.

(3) All the circumstances

1. 1. As I do not accept his explanation for this incredibly long delay, I must now move to stage three and consider all the circumstances. The factors I take into account are:

(1) Delay. Nine years have passed. Henderson J said that a tight timetable was appropriate at paragraph 50 of his judgment. This claim was just within I think one year of the end of the six year limitation period when it was issued in issued in December 2009, so now we are concerned with events of 18 years ago.

(2) That delay is prejudicial to the evidence and the fair trial. The claimant himself cannot give evidence as his medical evidence shows. Mr Hughes has passed away. The key document, which the defendants in any event claim is forged, exists only in copy form, the original allegedly being destroyed by a fire in 2006. There could, therefore, be substantial prejudice to the defendant if the claimant went to trial as the quality of the evidence would be poor, especially with fading memories and lack of documentation.

(3) The claimant had capacity in 2012 and 2013, and indeed until quite recently. He sadly does not now. He cannot be cross-examined and that is a major concern here in terms of prejudice to the position of the defendant.

(4) Significant costs. The defendant has incurred some £140,000. None of the costs orders of some £45,000 made in its favour have been met. The defendant, from Mr Ince’s evidence, is a family business with limited resources and has been prejudiced financially already.

(5) Proportionality as to time and costs. The claimant’s costs apparently for this application or leading to this application are some £160,000. With the defendant’s costs, that totals £300,000 so far and the claim as set out in the proposed draft amended particulars of claim is £250,000 being the investment which the claimant says amounts to unjust enrichment plus certain interest. It is therefore not proportionate.

(6) Compliance with court orders. The claimant failed to comply with the key order of Henderson J. He has failed to meet any of the orders for costs. He failed to serve evidence in support of his alleged claim in restitution until recently.

(7) Finally, the circumstances also include the destruction of the court file at some point before January 2019. That would have resolved the claimant’s application and the claimant could have should have obtained it when it was possible to do so. That to my mind is a factor against the claimant when I consider all of the circumstances.

1. All of those factors, in my judgment, mean I find against the claimant in that my consideration of all the circumstances does not enable the claimant to surmount his lack of a good explanation for the serious and significant breach that I have found. As to Issue 2, I therefore refuse the claimant’s application for a retrospective extension of time in which to issue this application for permission to amend his claim form and particulars of claim. I do not determine the issue of whether permission to amend should be given to plead restitution, because as I said at the hearing yesterday, Ms Ife has not had the opportunity to review the authorities relied on by Mr Bogle and now, for the reasons I have given, the claimant having failed on both Issues, there is no need nor point in doing so now.