CIBC Mellon Trust Company and Others v Stolzenberg and Others: ChD 3 Feb 2003

Application to set aside judgments entered on failure to comply with ‘unless’ orders.
Held: Etherton J said: ‘The Court of Appeal has laid down guidance as to the approach of the Court when considering an application for relief from sanctions within CPR r.3.9. The Court, in such a case, must consider each of the nine items listed in r.3.9(1) which are relevant to the case, carrying out the necessary balancing exercise methodically, and explaining how the ultimate decision has been reached: Woodhouse v Consignia [2002] EWCA Civ 275, [2002] 1 WLR 2558. The Court must bear in mind that, where the effect of the sanction is to preclude a trial on the merits, the effect is to deprive the applicant of access to the Court, a concept which now has a particular resonance under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998 (‘Article 6′): ibid at para. [42]. The Court, in carrying out the balancing exercise, is not, however, limited to the nine items specified in r.3.9. That rule expressly requires the Court to consider all the circumstances. In an appropriate case, for example, the Court can and should consider the merits, as part of the circumstances: Chapple v Emmett (unreptd) (CA) 8th December 1999. The exercise of the discretion of the Court under CPR r.3.9 must be carried out against the background, and in the light of, the overriding objective to deal with cases justly, as set out in CPR r.1.1: ibid.; Arrow Nominees Inc. v Blackledge [2002] 2 BCLC 167, esp. at paras.54-55 (Chadwick LJ) and 70 and 72 (Ward LJ).’

Judges:

Etherton J

Citations:

[2003] EWHC 13 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoCIBC Mellon Trust Company and others v Stolzenberg CA 15-Jun-2001
Application for leave to appeal, for an extension of time to appeal, and for a stay of execution pending the hearing of the appeal. . .

Cited by:

See AlsoCIBC Mellon Trust Company and others v Stolzenberg and others CA 13-Feb-2004
. .
Appeal fromStolzenberg and others v CIBC Mellon Trust Co Ltd and others CA 30-Jun-2004
The court considered the issue of the use of a strike out as a sanction for non-compliance with a court order.
Held: The approach of the court in a case considering relief for sanctions – exemplified by RC Residuals v Linton Fuel was bound to . .
CitedVenulum Property Investments Ltd v Space Architecture Ltd and Others TCC 22-May-2013
The claimant sought an extension of time to serve the Particulars of Claim. The solicitors said that they had misread the relevant Rules.
Held: The solicitors had acted on the basis of the former practice, but the rules had been substantially . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 27 November 2022; Ref: scu.431758