An ‘unless order’ for the service of particulars of defence was a not obeyed but application was made to amend the defence involving the abandonment of the paragraphs of which particulars had been ordered.
Held: ‘it appears to me that there must be degrees of appropriate consequences even where the conduct of someone who has failed to comply with a penal order can properly described as contumacious or contumelious or in deliberate disregard of the order, just as there are degrees of appropriate punishments for a contempt of Court by breach of an undertaking or injunction. Albeit deliberate, one deliberate breach may in the circumstances warrant no more than a fine, whilst another may in the circumstances warrant imprisonment. In each case all the circumstances must be taken into account including the nature of the relief which is sought by the party in default. It is one thing for a plaintiff who has been struck out for want of prosecution to issue a writ claiming precisely the same relief the next day. It is quite another for a defendant to raise an arguable defence not previously before the Court and thus in no way associated with the penal order. It is plain on the authorities that albeit with caution, a defendant whose defence has been struck out for failure to comply with a penal order can in appropriate circumstances, be permitted to continue the very same defence of which particulars were ordered. It is in my view clear that, albeit there must still be caution, the position of a defendant who seeks only to rely on a defence which was not subject to the penal order particulars and to raise an arguable defence not previously raised is stronger. To shut out a new arguable defence would require more heinous conduct than would be required to justify a refusal to reinstate the very defence of which particulars had been ordered. In essence, the question in each case must be whether the punishment fits the crime.’ Sir John Magaw: ‘The conduct of the defendants, having regard to the circumstances, could not be described as ‘contumelious’. With all respect, it seems to me that the word ‘contumacious’ would be more apt than ‘contumelious’ in the passage in Lord Diplock’s discussion of the effect of the failure to comply with a peremptory order in Allen v Sir Alfred MacAlpine… . ‘Contumacy’ means ‘perverse and obstinate resistance of authority’. Surely it is that characteristic not ‘insolent reproach or abuse’ which is a frequent hallmark of a litigants failure to comply with a peremptory order?’.
Judges:
Lord Justice Parker, Sir John Magaw
Citations:
[1992] 1 WLR 1196, [1993] 1 All ER 630
Jurisdiction:
England and Wales
Citing:
Cited – Allen v Sir Alfred McAlpine and Sons Ltd CA 1968
The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were . .
Cited by:
Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 05 November 2022; Ref: scu.211361
