16 December 2014Print This Post

Mitchell and Denton have “direct bearing” on strike-outs for non-compliance

RCJ

Claimant “in serious breach” of court-ordered timetable

The Mitchell principles, restated in Denton, have a “direct bearing” on whether courts should impose strike-outs for non-compliance, the Court of Appeal has ruled.

Lord Justice Richards said the trial judge in Walsham Chalet Park v Tallington Lakes [2014] EWCA Civ 1607 had taken the “correct approach” in treating the Mitchell principles as relevant and important in a pre-Denton ruling on a dispute over termination of a joint venture agreement.

Richards LJ said: “The Mitchell principles, as now restated in Denton, have a direct bearing on such an issue.

“It must be stressed, however, that the ultimate question for the court in deciding whether to impose the sanction of strike-out is materially different from that in deciding whether to grant relief from a sanction that has already been imposed.

“In a strike-out application under rule 3.4 the proportionality of the sanction itself is in issue, whereas an application under rule 3.9 for relief from sanction has to proceed on the basis that the sanction was properly imposed.

“The importance of that distinction is particularly obvious where the sanction being sought is as fundamental as a strike-out.”

In the case, the claimant had agreed to market and sell caravans from the defendant’s site, but the agreement broke down and both claimed loss of profits.

The defendant was represented in the proceedings by its director, Neil Morgan, a non-lawyer “with a considerable knowledge of the rules and authorities”.

Richards LJ said Mr Morgan “rightly concentrated” on the three-stage approach set out in Denton. The judge said the claimant “was in serious breach of the court-ordered timetable, and despite the excuses advanced, there was no good reason for the breach”.

However, Richards LJ said that at the third stage, consideration of all the circumstances of the case, the position was more complex.

He said the defendant had been late, though not seriously, in serving its list of documents and providing copies, in serving witness statements and “importantly”, was in breach of a court order.

As the trial judge found, Richards LJ said the defendant had made “no effort constructively to take the case forward”. He had no reason to doubt the trial judge’s assessment that the defendant was more to blame than the claimant for the “whole acrimonious history of this sorry piece of litigation”.

Lord Richards dismissed the defendant’s appeal against the trial judge’s order dismissing the strike-out application. Lord Justice McCombe and Lady Justice Sharp agreed.

By Nick Hilborne

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