A litigant in person who failed to carry out the instructions of an unless order has been granted relief by three Court of Appeal judges.

The claimant in Park v Hadi & Anor had been ordered to take certain procedural steps by a specific date or the court could agree to strike out his claim.

In the event, following mistakes with his submission, he did not meet his obligations to the court for another five days, prompting the defendants to ask that service be ruled defective.

In the High Court, Mr Justice Freedman found in favour of the claimant, saying the unless order was wide-ranging and Park had done his best without legal representation to meet its terms. That view was endorsed by Lord Justice Holroyde, Lord Justice Stuart-Smith and Lord Justice Warby, who dismissed the defendants’ appeal and concluded the claim should survive.

They said: ‘The judge was entitled to set the relatively venial deficiencies against the substantial compliance with [the] order and to conclude that striking out the claim would be disproportionate and contrary to the overriding objective of dealing justly with the case.’

The case, one of many to cite the three-stage Denton process for assessing non-compliance, will be seen as a sign that judges are willing to forgive breaches so long as litigants can prove they did all they could to comply.

The court heard that the defendants had filed a defence and counterclaim in response to Park’s contractual dispute claim, but no defence to the counterclaim was served. Mr Justice Lavender had told the claimant there would be ‘no further toleration’ of any failure to comply with court rules, and he ordered the production of documents, bank statements and witness statements by 4pm on 18 June.

Park emailed the court at 3.55pm on 18 June with a selection of the documents required, but certain items were still missing. The documents were finally emailed to the defendants’ solicitors at 4.33pm on 22 June.

Freedman subsequently found ‘substantial mitigation’ for the default and concluded it was neither intentional, reckless or defiant, and did not cause prejudice to the defendants. Park was issued a further order designed to procure the necessary statements and told to re-issue witness statements and sign a statement of truth.

On appeal, the defendants argued that the judge had misdirected himself and used discretion that was not open to him.

The appeal judges said discretion to grant relief from sanctions should indeed be used ‘sparingly’ but that non-compliance in this case had largely been caused by technical difficulties and the issues could be resolved by the requirement to re-serve the required documents.

 

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