The Court directed that unless particulars were served by a specified date the defendant’s claim should be struck out. The defendant served some particulars but it was decided that the defendant had deliberately flouted the unless order and its pleadings would be struck out.
Held: The striking out was upheld.
A failure to follow and obey an ‘unless order’ is to be viewed in the context of the overall justice of the case, and ‘this court should not distinguish between the litigant himself and his advisers. There are good reasons why the court should not: first, if anyone is to suffer for the failure of the solicitor it is better that it be the client than another party to the litigation; secondly, the disgruntled client may in appropriate cases have his remedies in damages or in respect of the wasted costs; thirdly, it seems to me that it would become a charter for the incompetent (as Mr MacGregor eloquently put it) were this court to allow almost impossible investigations in apportioning blame between solicitor and counsel on the one hand, or between themselves and their client on the other. The basis of the rule is that orders of the court must be observed and the court is entitled to expect that its officers and counsel who appear before it are more observant of that duty even than the litigant himself.’ and ‘Had counsel appeared before the learned judge with sufficient humility, making respectful submissions that it was considered that the order had been complied with, throwing himself or herself on the mercy of the court, and offering to comply with its order if that view was wrong, then I imagine that the quality of mercy would not have been utterly dead in the judge’s bosom. In this case that was not the course followed by these defendants. It is too late for them to come to this court with blandishments of that kind.’
Ward LJ set out the approach to unless orders as follows –
1. An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party’s last chance to put his case in order;
2. Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed;
3. This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure;
4. It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred), flouts the order then he can expect no mercy;
5. A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order;
6. The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice;
7. The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weigh very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.
Ward LJ, Auld LJ, Lord Woolf MR
Times 31-Dec-1996, [1996] EWCA Civ 1099, [1997] 1 WLR 1666
Bailii
England and Wales
Cited by:
Cited – Dowles Manor Properties Limited v Bank of Namibia and Kalweendo CA 9-Mar-1998
The plaintiff sought leave to appeal against an order striking out its claim, having failed to comply with unless orders as to the filing of details of its case. The company’s officers were not resident in England. Their solicitors had withdrawn . .
Cited – Worldwide Corporation Limited v Marconi Communications Limited (Formerly GPT Limited) and GPT (Middle East) Limited 22-Jun-1999
Application for leave to appeal. Original leading counsel had consented to the abandonment of parts of the claim. New leading counsel now sought to revive them.
Held: The claim had little prospect of success. Leave to appeal refused. . .
Cited – Oliver v Cox (T/a Focus Service Station) CA 24-Jul-1997
The claimant sought leave to appeal against the refusal of an award of special damages. The claim had mounted spectacularly, but he had failed to provide evidence as directed to support the claim.
Held: Even at the time of the application, the . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Leading Case
Updated: 02 November 2021; Ref: scu.140966
