YOU SHOULD REALLY NOTICE WHEN YOU HAVE FAILED TO COMPLY WITH A COURT ORDER AND REQUIRE RELIEF FROM SANCTIONS: “THE COURT’S PATIENCE WAS BEING SORELY TESTED”

November 28, 2022 · by · in Applications, Relief from sanctions, Setting aside judgment

A short part of the judgment of Master Stevens in  Bailey v Bijlani & Anor [2022] EWHC 2821 (KB) records the fact that the applicant defendant required relief from sanctions, but was not proposing to ask for it.

“… I do consider it important to include this brief record about the apparent lack of awareness of the need for relief to be properly dealt with, in case there are any further defaults in the future.”

THE CASE

The claimant obtained a default judgment.  The first defendant applied to set it aside.   The first defendant attended the first application and further steps were needed.  The first defendant was late in complying, and there was an issue as to whether all the documents ordered had been made available.   The first defendant made an application for relief from sanctions, however at the beginning of the adjourned hearing no application for relief was made.  The Master held that it was necessary for the first defendant to apply for relief.  Relief was granted, but a clear marker was put down b y the court.

THE JUDGMENT IN RELATION TO RELIEF FROM SANCTIONS

The judgment sets out the history of the matter.  The fact that the first hearing had been adjourned, with specific orders made and that there had been non-compliance.  The Master indicated that relief from sanctions was necessary, in response to the first defendant’s statement that this were not being applied form.

2. The first defendant’s first application first came before me at a hearing on 13th April 2022, but there was insufficient time to conclude matters on that occasion. The first defendant had arrived late for the hearing and been unrepresented, and a number of key documents were missing which I considered I needed to review before making a final determination. I therefore made an unless order on that occasion as follows:
(1) Unless the First Defendant complies with the remaining paragraphs of this order then the default judgement already entered against the First Defendant in favour of the Claimant with damages to be assessed shall not be set aside.
(2) The First Defendant shall, within two days of the service of this Order:
(i) File and serve a signed copy of her Defence on the Claimant and the Second Defendant, with a further signed copy to be filed with the Court:
(3) the First Defendant shall within 14 days of the service of this Order:
(i) File and serve an application to the Court supported by a sworn witness statement exhibiting copy documents to demonstrate:
(a) that the First Defendant instructed and paid lawyers to assist her in the defence of this claim, with dates of instruction and documents demonstrating the actions taken by those lawyers to assist her(redacted if necessary);
(b) the current status of the First Defendant’s dispute with the General Dental Council with documents to evidence as to what was decided by the General Dental Council in respect of the dental treatment provided by the First Defendant to the Claimant (the subject of this claim), whether an appeal has been lodged against any such decision and the current status of that appeal with information as to any key dates currently known for the future progression of that appeal.
(ii) make an interim payment in respect of the Claimant’s costs of today’s application in the sum of £4000. The full costs payable by the First Defendant to the Claimant in respect of today’s application shall be summarily assessed at the next hearing.
(4) the time periods set out in paragraphs 2 and 3 above shall commence from the date the Master approves this Order and notifies the parties of that approval by e-mail.
(5) This matters shall be re listed for a further hearing with a time estimate of 1.5 hours on the first available date after the First Defendant has submitted the evidence set out in paragraph 2 above
    1. Following this order, which was sealed on 14th April 2022, in respect of paragraph 2 the first defendant served signed copies of her defence on 20th April 2022 (i.e. out of time) . In respect of paragraph 3 of the order she served a draft witness statement on the final day for compliance with that part of the unless order ( but lacking the exhibits referred to) , and also the first defendant said that she was going to transfer funds in respect of interim costs that same day, which was the last day before the bank holiday weekend. In fact the claimant’s solicitor was then served with the complete statement on Tuesday, 3rd May (i.e. out of time) , and that same day they received the interim costs into their account. The exhibits to the witness statement were said by the claimant not to include all of the documents which I had specified in my previous order in respect of her legal representative’s retainer and the General Dental Council (“GDC”) proceedings. However there were some documents pertaining to those matters in the exhibits, with the claimant supplying the balance in the hearing bundle.
    1. On 3rd May 2022 the first defendant also served a fresh application notice ” to set aside the default judgment and for relief from sanctions if necessary” and BSG solicitors commenced communicating on behalf of the first defendant with a Notice of Acting following shortly thereafter.
  1. At the restored hearing of the first application on 21st June 2022, when the second application was also considered, counsel for the first defendant did not make any initial submissions seeking relief from sanctions in respect of non-compliance with my order as he said he had not been instructed to do so. Indeed his skeleton argument contained a submission at paragraph 36 that “D has complied with the Order made by Master Stevens on 13 April 2022”. After I had suggested to counsel that he might wish to consider the matter in a short adjournment with his client, the application was duly made and granted. I emphasised in my determination that the court’s patience was being sorely tested through persistent defaults by the first defendant, but in all of the circumstances on this occasion, I considered it would not be just to disallow the first defendant her opportunity to make final submissions about setting aside the default judgment. I am not setting out all the submissions on the relief point, nor my findings under the Denton principles, in this judgment as I do not consider it necessary to do so, but I do consider it important to include this brief record about the apparent lack of awareness of the need for relief to be properly dealt with, in case there are any further defaults in the future.