Christopher Tromans reviews some differing approaches to the implementation of sanctions


Two frequently asked questions relating to sanctions are:

l Is a further order of the court required to give effect to the sanction in the event of non-compliance?; and

l After the stated period for compliance has expired, does the court have jurisdiction to extend the time?



The answers to those questions have not always been the same. During the 19th century, the answers to both were in the negative. In Whistler v Hancock [1878] 3 QBD 83, an application for an extension of time for compliance was issued before expiry of the time fixed by the order but was not heard until after expiry. The Divisional Court held that there was no jurisdiction to grant relief since the action had automatically terminated when the time expired. There was a similar result in King v Davenport [1879] 4 QBD 402, where the summons seeking an extension had been issued in time but had been adjourned until the day after expiry.



Matters rested until 1981, when the Court of Appeal in Samuels v Linzi Dresses [1981] QB 115 held that those earlier authorities should no longer be followed. The court does have jurisdiction to extend time after the time for compliance has passed, even where there is an unless order, but the power should be exercised with caution. What remained unclear was whether an application to give effect to the sanction was required and a practice developed where applications to activate a sanction were routinely made, either to establish beyond doubt the failure to comply or to provide an opportunity to extend time if the failure could be explained and excused.



The relevant provisions of the Civil Procedure Rules (CPR) are as follows:

l The court has power to extend time, even after expiry (rule 3.1(2));

l The court may strike out a statement of case if there has been a failure to comply with an order (rule 3.4(2)(c));

l If a judgment is required after a statement of case has been struck out, a request must be lodged after the strike-out has taken place other than in the specified types of case (rule 3.5(2)); and

l Any sanctions imposed will apply unless and until the party in default has applied for and obtained relief (rule 3.8).



At first sight, all this appears quite straightforward, but it was not long before uncertainty began to re-emerge. In Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256, there had been a deliberate failure to comply with an order for disclosure. Mr Justice Millett (as he then was) held that the failure should be dealt with as a contempt of court rather than by entering judgment against the party in default, which would be disproportionate unless it was apparent that the breach had rendered a fair trial of the issues impossible.



Similarly, in Raja v Van Hoogstraten [2004] EWCA Civ 968, [2004] 4 All ER 793, there had been a failure to comply with a disclosure order ancillary to a world-wide freezing order, an unless order having subsequently been added. Lord Justice Chadwick held that the freezing order was an ancillary order and it would be disproportionate to strike out a defence and counterclaim because of a failure to give disclosure in relation to an ancillary order. Furthermore, the failure to give disclosure did not prejudice the fair trial of the substantive issues.



More recently, there has been a comprehensive review of the position by the Court of Appeal. In Marcan Shipping (London) Ltd v Kefalas & anor [2007] EWCA Civ 463, [2007] 3 All ER 365, the claim was for damages arising from the termination of an agency agreement. Failure to comply with an order for specific disclosure had resulted in the making of an unless order with provision for dismissal of the claim in the event of a default. The disclosure given was defective and the defendants applied for an order for dismissal and costs. At the hearing at first instance, the claimant did not apply for relief pursuant to rule 3.8, but submitted that any breach was not sufficiently serious to justify dismissal of the claim. The claim was nevertheless struck out and the claimant appealed on the basis that the breach had not rendered a fair trial impossible and relying on Logicrose.



In giving the leading judgment of the court, Lord Justice Moore-Bick reviewed the history of the unless order and examined the detailed provisions of rule 3. He distinguished Logicrose and subsequent authorities in which the Logicrose approach had been followed on the ground that there had, in those cases, been no unless order in place prior to the application to dismiss. Raja was also distinguished on the basis that the failure to comply with the unless order was not the primary issue in that case.



Rule 3.1(3)(b) expressly gives the court power to specify the consequences of non-compliance and the effect of rule 3.8(1) is that no further order is required to make the sanction effective. This is reinforced by the terms of paragraph 1.9 of the part 3 practice direction. Close consideration of rules 3.4(2)(c) and 3.5(5) indicates that a further application is required only where a judgment is required in cases outside rule 3.5(2). The party in default may, however, apply for relief under rule 3.8 and the court will exercise its discretion applying the rule 3.9 criteria. The court will only grant relief on its own initiative in exceptional cases, since normally evidence will be required as to the rule 3.9 factors before the court's discretion can be exercised.



In summary:

l Except where rule 3.5(5) applies, no further order is required to activate a sanction;

l The party in default must make an application under rule 3.8 if relief is sought; and

l Any sanction being imposed must be appropriate and proportionate in the circumstances subsisting when the order is made.



The appeal in Marcan was dismissed on the facts, but the issue of proportionality of default has arisen again in Lambeth LBC v Onayomake (2007) The Times, 2 November (CA). This was a defended possession case being defended on the basis that the defendant was a secure tenant and not a tolerated trespasser. After the defendant's solicitors had failed to file a pre-trial check list on time, a district judge listed a case management conference to establish why. The defendant's solicitor arrived late and, by the time he arrived, the defence and counterclaim had been struck out. The appeal was allowed.



District Judge Tromans sits at Plymouth Combined Court Centre