A High Court judge has upheld a decision refusing relief from sanctions because the solicitors involved were “serial offenders” in breaking the rules during the case.
Mr Justice Cranston said the lawyers, from MartynsRose in London, had a “dismissive attitude to their disclosure obligations” and their case was pleaded in an “unsatisfactory way”.
Cranston J said that “significantly” their failure to contact the defendants to prepare a bundle for the hearing “culminated in the loss of the first day”.
Delivering judgment in Fouda v London Borough of Southwark  EWHC 1128 (QB), he said: “Addressing all the circumstances of the case, including past and current breaches of the rules, which is required at stage three of the Denton v TH White approach, the judge would have been perfectly entitled to refuse relief from sanctions.”
The court heard that Mr Fouda sued the council for over £90,000 in a dispute over the confiscation of his car, which he said was essential for his business as a taxi driver.
Mr Fouda did not deny he was behind with his council tax but argued that the car was exempt from seizure. The council replied that as soon as he had provided evidence of its use for private hire, it had given instructions for its release.
A court order required all witness statements to be filed by 16 December 2013. Both sides missed the deadline. The council served its statement on 20 December, and Mr Fouda served his on the council on 13 January 2014.
Cranston J said the trial judge himself raised the point that the witness statements had been served out of time, in breach of CPR 32.10. The defendants said they were content for their witness statements not to be admitted, but opposed the admission of the appellant’s.
Cranston J said: “The judge rejected the appellant’s application for relief from sanctions. He said that there had been no explanation as to why an application to extend time had not been made before the expiry of the time provided for the exchange of witness statements.
“The medical evidence about the appellant’s health was at the least equivocal and it was not clear to him that the appellant’s condition in December necessarily prevented the preparation of a witness statement.”
Counsel for Mr Fouda argued that, at the time of the trial at Central London County Court, Denton had not been decided by the Court of Appeal, and the judge had not assessed the factors it identified.
However, Cranston J said that even if the judge had worked through the majority ruling in Denton, he would have reached the same conclusion.
“Most importantly, the non-compliance with CPR 32.10 was within a context where the appellant’s solicitors had been serial offenders”.