CONSTRUING PEREMPTORY ORDERS: THE DATE FOR COMPLIANCE IS THE DATE FOR COMPLIANCE: COURT OF APPEAL DECISION

In Poule Securities Ltd v Howe & Ors [2021] EWCA Civ 1373 the Court of Appeal considered the construction of an “unless” order.  It was held that the date for compliance on the order had to be construed as the correct date.  The provisions of the Civil Procedure Rules, and the period for applying to set aside the order, did not alter the clear wording of the order itself.

 

THE CASE

The claimants issued proceedings in a dispute in relation to the terms of ownership of the property. The claimant was ordered to provide disclosure of certain documents. The claimant did not comply and a peremptory order was made.

THE TERMS OF THE PEREMPTORY ORDER

The order was made, on the 28th November 2018,  in the following terms.

1 Unless by 7 days of this order the claimant comply with paragraph 6 of the order of 27 September 2018, as ordered by DDJ Lacey on 27 September 2018 the claim and defence to counterclaim shall be struck out automatically without any further order of the court.

[…]

3 This order has been made without a hearing under the Court’s Case Management powers contained in part 3 of the Civil Procedure Rules, and/or without notice to yourself. You may within 7 days of service of this Order upon yourself apply to the Court to set aside or vary the order under Part 3.3(5) Civil Procedure Rules. You must file with the Court (serve on the other party/ies) an application which sets out your reasons for objecting to the order. When your application including your reason(s) for objection to the order are received by the Court the application will be listed for a hearing unless the Court feels this is unnecessary or you request the Court to vary the Order without a hearing.

THE HEARING BEFORE THE DISTRICT JUDGE

The claimant received the order on the 3rd December 2018.  On the same date the claimant made an application to set the order aside.  This was heard on the 10th December 2018.    The District Judge held that the claimant was in default of the order and its part of the action was automatically struck out.

    1. By the time of the hearing before DJ Williams the position was as follows. Poule had not done what was required by the unless order made by DJ Powell. Poule was making an application to set aside the unless order. There was no application by Poule for an extension of time for compliance with the unless order nor was there an application for relief from sanction.
    1. DJ Williams made an order in the following terms (numbers have been added to the recitals for ease of reference):

(i) UPON hearing counsel for the claimant and the 1st and 2nd defendants in person.

(ii) And Upon the claimants confirming that they have obtained the conveyancing file but have not yet disclosed it to the defendants.

(iii) And Upon the court finding that the claimant remains in breach of Paragraph 6 of the order of 27 September 2018

(iv) and in breach of the order of 29 November 2018.

(v) And Upon the court noting that pursuant to the order of 29 November 2018 the claim stands struck out and the defence to the counter claim stands struck out.

IT IS ORDERED THAT

1. The claimants application to set aside the court order of 29 November 2018 is refused

2. Pursuant to the order of 29 November 2018 the claim stands struck out.

3. Pursuant to the order of 29 November 2018 the defence to the counterclaim is struck out and judgment is entered in favour of the Part 20 Claimant on the counterclaim with damages to be assessed.

4. By 4pm on 7 January 2019 the Part 20 Claimant’s shall notify the court and the parties whether they intend to continue with the counterclaim. In the event the counterclaim is being pursued the parties shall file and serve draft proposed directions by 4pm on 21 January 2019.

5. The claimant shall pay the defendants costs of the claim to be subject to detailed assessment in default of agreement.

[…]

THE APPEAL TO THE COURT OF APPEAL

The claimant’s appeal was unsuccessful and there was a further appeal to the Court of Appeal. The issue was whether the claimant was in breach of the date of the order at the time of the hearing. The claimant argued that the time for compliance ran from the date of service and not the date of the order. The Court of Appeal rejected this argument, relying on the express wording of the order itself.
    1. The question on ground 2 of the appeal is the true interpretation of the order. Counsel for Poule contends that the time for compliance with the unless order, so as to avoid its sanction, was 7 days from the date of service of the order. That would have been 7 days from 3 December 2018. Therefore Poule was not yet in fact in breach at the hearing on the morning of 10 December. Counsel contends that is what the order means, particularly when read in the context of the provisions of the Civil Procedure Rules. The argument also draws attention to paragraph 3 of the order, in which the 7 day period within which an application to set aside may be made is expressly provided for as running from the date of service.
    1. The defendants contend the correct meaning is that the period runs for 7 days from the date the order was made. That was 28 November 2018. Even if one uses instead the date the order was sealed, 29 November 2018, that makes no difference. Either way by 3 December 2018 Poule was in breach.
    1. Taking the order at face value, I would hold that the words “by 7 days of this order” mean that the 7 day period runs from the date of the order, in other words the date the order was made. That date appears on the document itself. There is a possible ambiguity between the 28th November (date of making) and 29th November (date of sealing) but in this case that makes no difference.
    1. Nevertheless all documents must be read in context and in this case the relevant context is the CPR. There are two important provisions about orders which specify a time by which something must be done. The first is rule 2.9, which provides as follows:

2.9 Dates for compliance to be calendar dates and to include time of day

(1) Where the court gives a judgment, order or direction which imposes a time limit for doing any act, the last date for compliance must, wherever practicable –

(a) be expressed as a calendar date; and

(b) include the time of day by which the act must be done.

(2) Where the date by which an act must be done is inserted in any document, the date must, wherever practicable, be expressed as a calendar date.

    1. The rule speaks for itself. An order imposing a time limit ought to be expressed as a calendar date with the time for compliance as well as the date, and the only exception the rule permits is if that is not practicable.
    1. The second set of provisions is in Practice Direction 40B at paragraphs 8.1 and 8.2. These provide:

Orders requiring an act to be done

8.1 An order which requires an act to be done (other than a judgment or order for the payment of an amount of money) must specify the time within which the act should be done.

8.2 The consequences of failure to do an act within the time specified may be set out in the order. In this case the wording of the following examples suitably adapted must be used:

(1) Unless the [claimant][defendant] serves his list of documents by 4.00 p.m. on Friday, January 22, 1999 his [claim][defence] will be struck out and judgment entered for the [defendant][claimant], or

(2) Unless the [claimant][defendant] serves his list of documents within 14 days of service of this order his [claim][defence] will be struck out and judgment entered for the [defendant][claimant].

Example (1) should be used wherever possible.

    1. Thus paragraph 8.1 more or less repeats rule 2.9(1)(b) concerning the requirement to specify a time for compliance as well as a date. It does not apply to orders for the payment of money. Although the paragraph does not include a reference to the practicality exception in rule 2.9(1), it cannot be read as suggesting there is no such exception.
    1. Paragraph 8.2 applies to unless orders. The difference between the two examples in the paragraph is that in Example (1) a particular date and time for compliance is specified whereas in Example (2) the period is defined by reference to the date of service of the order. These are the only examples given.
    1. The alternatives in PD40B make obvious sense. Given that the consequence of failure to comply with an unless order can be the failure of the underlying claim (or defence) it makes obvious sense that the options ought to be either to specify a period for compliance which runs after the date the order has been served or else to express the required date unambiguously as a calendar date, and it also makes obvious sense that a calendar date (and time) is to be preferred. Nevertheless the court will always have the power to make an order which does not fall within either example.
    1. In my judgment, taking these provisions in account does not lead to a different conclusion as to the meaning of the unless order in this case. Neither the rule nor the provisions of the practice direction demand that an order drafted in a manner different from their provisions is to be interpreted in a particular way. As far as PD 40B is concerned, the order made is not in the form of either example. Assuming the judge had taken the view that specifying a calendar date was not practical, to be in accordance with PD 40B the order ought to have specified at least a date for compliance referable to the date of service. However the fact the order is outside either example does not justify altering its clear meaning to attempt to bring it within one of them. Counsel for Poule submits that one should assume that the order was intended to comply with PD 40B and, armed with that assumption, interpret the order as meaning that the 7 day period ran from service. I cannot read the order that way. It is just not what the words would be understood to mean.
    1. The fact that one is left to speculate why the unless order was made in terms which must be seen as exceptions to the clear provisions of the rule and practice direction taken together, would be of potential relevance on an application to vary the order or to seek an extension of time, but that is a different point.
    1. I am not persuaded that paragraph 3 of the order assists the appellant. It is simply a different provision, no doubt drafted to reflect CPR rule 23.10 which provides that applications to set aside or vary orders made without notice must be made with 7 days of the date of service on the person applying to set aside or vary. If anything the contrast in wording cuts in the other direction. There is no reason why latest date before which an application to set aside has to be made must necessarily be before the date required for compliance with the order. The fact that applications to set aside an order should, if possible, be brought before the date for compliance, does not alter the position.
    1. Kinsley v Commissioner of Police for the Metropolis [2010] EWCA Civ 953 emphasises the importance of clarity in unless orders. Given their potential consequences the need for clarity in orders of that kind is plain. However I am not persuaded by the submission in this case that the order should be characterised as ambiguous in its own terms and then, as a result, open to the interpretation advanced by the appellant.
  1. I would dismiss the appeal on this ground.