Hitachi Sales UK Limited v Matsui Osk Lines Ltd: CA 1986

The court considered the effect of non-compliance with the following order: ‘Unless the Defendants do serve within 14 days the Further and Better particulars of the Points of Defence . . the Points of Defence be struck out, and the Plaintiffs be at liberty to enter judgment against the Defendants for damages to be assessed.’
Held: ‘in the present case the learned judge was right to hold that a judgment founded on this order had to be set aside as of right. I do not think that the wording of O. 2 has any bearing on that proposition. So far there is no fully reported judgment on this topic, and we have been told . . that there are very many ‘unless orders’ which are made in this form. They are, on the authorities which I have cited, bad. When one looks at O.42, r.2, par 1, it is obvious that the first requirement is that the order must state the period within which the order is to be obeyed starting with the date of service. One can see that the object of that is that an ‘unless’ order enabling the party obtaining it to sign judgment in default is so grave a matter that one would expect the rules to provide that the time should not run until the party against whom it was made has been made aware of the order. ‘


O’Connor, Neill LJJ


[1986] 2 Lloyd’s Law Report 574


England and Wales


CitedWhite v Weston CA 1968
A county court summons was purportedly served on the defendant at a previous address and he did not receive it.
Held: The court treated the case as one in which the defendant had not been duly served with process. Judgment was given against . .

Cited by:

CitedFrederic J Whyte and Partners (a Firm) v IAF Properties Limited CA 5-Nov-1996
The plaintiff had failed to comply with an ‘unless’ order.
Held: It was a clear requirement that the party should be known to have been aware of the content of an unless order. The order as drafted was fatally irregular and should be set . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 July 2022; Ref: scu.194979