There are twp other aspects of the Court of Appeal judgment in Poule Securities Ltd v Howe & Ors [2021] EWCA Civ 1373 that merit consideration.  Firstly the claimant’s decision to make one application; the second related to concessions made before the District Judge.



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 claimant made an application to set aside the order.  The claimant did not comply with the order, nor did it make an application for relief from sanctions.


The court did not set aside the order.  Once that was decided the claimant had no fall back position.  The claim stood struck out, a decision that was upheld by the Circuit Judge and the Court of Appeal.

“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.”


There was an issue as to whether the claimant had made a concession at the hearing before the District Judge in relation to the claimant being in breach of the order at the time of the hearing.  The Court of Appeal found that the concession had been made, and properly made and there was no ambiguity about it.

    1. Counsel referred to Segor v Goodrich Actuation Systems Ltd [2012] UKAET0145/11 in which the EAT including Langstaff J as President, held at paragraph 11 that a concession made in litigation by a party or on their behalf “cannot properly be accepted as such unless it is clear, unequivocal and unambiguous”. I agree.
    1. Paragraph 11 of Segor also addresses the care which must be taken when concessions are or appear to be made by litigants in person or lay representatives, however that particular aspect is not relevant in the present case since Poule was represented by counsel at the hearing on 10 December 2018 (albeit not Mr Wolman who now represents Poule).
    1. Counsel also referred to the recent judgment of Chamberlain J in Murphy & Linnett v HMRC [2014] EWHC 1914 (Admin). That case relates to the interpretation of extra-statutory concession made by the Inland Revenue and is not relevant to the present appeal.
    1. We were taken through the relevant parts of transcript before DJ Williams. Having done that I am wholly unpersuaded that there was anything unclear, equivocal or ambiguous about the concession being (rightly) made by counsel for Poule that his client was, as at 10 December 2018, in breach of the unless order. I will refer only one part. In the passage the judge summarises with counsel for Poule what he, the judge, understands the position to be, which is that Poule was now in a position in which an application for relief from sanction had to be made, because it had failed to comply with the unless order, as well as failing to comply with both the order made by DDJ Lacey on 27th September and the original disclosure order made before that. Counsel clearly agrees with the judge and accepts that that is the position.
    1. The transcript (at p13-14) is:
“District Judge Williams […] Now, I don’t know who drafted the application [to set aside] and it’s not for me to, to get involved in that, but the reality is that, based on that application, it doesn’t get anywhere close to giving me sufficient information, justification or reasoning as to why the Claimant has failed to comply with, a) the first order, whenever that was, b) the order that I do know about which is 27 September, what steps it took to try to comply with 27 September, I don’t even yet know the full picture of that, and why, therefore, it has failed to comply with the Unless Order. I, I simply can’t see how the application can succeed. And conceivably the result of the 29 November order is that the 7 days have come and gone and the Claimant hasn’t complied with an Unless Order which means, as the order says, the claim and defence to counterclaim is automatically struck out. So, I think the Claimant’s in the territory of making an application for relief from sanctions.
Mr Cook: Yes, Sir.
District Judge Williams: But I don’t think you’re in a position to do that today.
Mr Cook: Not in a position to do that today, no, Sir, for the simple reason there’d be a lack of evidence —
District Judge Williams: Yeah, yeah.
Mr Cook: To support that, available to support that application.
District Judge Williams: Well, I’m not sure that we can take it any further than that, can we?
Mr Cook: No, Sir.”
  1. In those circumstances ground 1 of the appeal before us should be dismissed.