One of the three Mitchell cases to be heard by the Master of the Rolls next week centres on whether a solicitor should have put a cheque in the post shortly before Christmas to pay for the hearing fee.
The deadline for payment under an unless order was 19 December 2013, and Judge Jarman QC, sitting as a High Court judge in Cardiff, said the cheque did not arrive and the fee was eventually paid by card on 9 January 2014. He ruled that the failure to comply with the timetable was “not trivial” and struck out the claim.
Judge Jarman said it was “not acceptable at all” for the solicitor involved to “seek to rely on what he may or may not have been told by members of staff in the court office when it comes to compliance with a judicial order”.
The case, Decadent Vapours v Joseph Bevan and others (case no. 3CF30143), is one of the three cases involving ‘trivial’ breaches to be heard next week by the Court of Appeal, starting on Monday.
Cardiff District Registry heard that Decadent Vapours, which makes vapours for electronic cigarettes, wanted to obtain an injunction against an employee who, it was alleged, was developing a rival product.
At a hearing on 12 December 2013, the court ordered that unless the claimant filed a pre-trial checklist and paid the hearing and application fee by 4pm on 19 December 2013, the claim would be struck out. The pre-trial checklist was filed on time.
The solicitor at Clarke Wilmott in Southampton, acting for Decadent Vapours, told the court that he spoke to a court listing officer, who indicated that the fee could be paid by card or cheque, but not by bank transfer.
The solicitor said that Clarke Wilmott did not have a credit or debit card in its Southampton office which could be used to pay court fees, nor did it have an office in Cardiff, and it was disproportionate to send a fee-earner from the Bristol office.
He said he asked the listing officer if payment could be made by cheque and arrive after the pre-trial order, and the officer said it could. The solicitor said he called the court again on 19 December, to confirm that the application had been filed by e-mail.
Judge Jarman said that shortly after that call, the solicitor started drafting the covering letter to send the cheque to the court and although “he was not involved in the physical process of posting that letter”, it appeared that the usual procedures for office post were carried out.
The judge said that “no further check was made on whether the cheque had been cashed” and it emerged at the pre-trial review on 7 January that it had not been. Payment was made on 9 January, followed by an application for relief from sanctions.
Judge Jarman said it was clear from the solicitor’s witness statement that he regarded the indications given by the listing officer as “somehow justifying or excusing” his behaviour.
“I make it clear in this judgment that I disagree. He is an officer of the court. He does not know to whom he spoke, other than it was a male on one occasion and a female on the other occasion.
“He does not know the position of the member of staff at the listing office. He does not know the grade of the staff. He was well aware of a clear order: that unless a payment was made by 4pm on 19 December, the case of his clients would be struck out.”
Judge Jarman dismissed the claimant’s application for relief from sanctions. He went on to refuse permission to appeal, saying that there was “no realistic prospect of success”.
The other cases to be heard by the Court of Appeal next week are Denton and others v TH White and Utilise TDS v Davies and others  EWHC 834 (Ch), which involved two acts of non-compliance.