Thevarajah v Riordan and Others: SC 16 Dec 2015

The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied with the order. The claimant challenged the right of the second judge to grant such relief after the first order, and succeeded in having the debarment re-instated. The defendants now appealed to have the relief restored, contending that the Court of Appeal had erred both in: (i) holding that the Appellants needed to establish a material change of circumstances in order to succeed on the second relief application; or, in the alternative ii) holding that the Appellants had failed to establish a material change.
Held: The appeal failed. The Court of Appeal’s reasoning had been correct. The second relief application should not have been considered on its merits. This applied under CPR 3.1(7), and in any event as a matter of ordinary principle. The later full compliance with the unless order was not of itself a material change of circumstances. The application of sanctions was effectively the court saying that it was too late to comply. Though circumstances might apply to warrant such an application, no such circumstances applied here.
Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge
[2015] UKSC 78, [2015] 6 Costs LR 1119, [2016] 1 WLR 76, [2015] WLR(D) 540, UKSC 2014/0071
Bailii, Bailii Summary, WLRD, SC, SC Summary
Civil Procedure Rules 3.1(7)
England and Wales
See AlsoThevarajah v Riordan and Others ChD 9-Aug-2013
The court was asked first whether the defendants had complied with an unless order made with respect to the disclosure of information required to be provided in aid and in order to ensure the proper release of a freezing order which had previously . .
1st Instance judgmentThevarajah and Another v Riordan and Others ChD 21-Mar-2014
The parties disputed the arrangements for the intended acquisition by the Claimant of three properties, or more accurately of all or part of the shares in their owning companies. Following a failure to comply with ‘unless’ orders fr disclsure of . .
Appeal fromThevarajah v Riordan and Others CA 16-Jan-2014
Defendants appealed against an order allowing the application of the first, second and fourth respondents for relief from sanction under CPR 3.9. The relief sought had previously been refused by Hildyard J, so this was the respondents’ second . .
At first Instance (No 2)Thevarajah v Riordan and Others ChD 10-Oct-2013
The court allowed the application of the first, second and fourth respondents for relief from sanction under CPR 3.9. . .
CitedMitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .
CitedChanel Ltd v F W Woolworth and Co CA 1981
On an interlocutory application by the claimant for relief in respect of alleged infringement of trademark and passing off the defendant gave undertakings until judgment or further order. Shortly thereafter the Court of Appeal in another case upheld . .
CitedLloyds Investment (Scandinavia) Ltd v Ager-Hanssen ChD 15-Jul-2003
The defendant sought a variation under Part 3.1(7) of an order setting aside an earlier judgment in default of defence, on terms requiring a substantial payment into court with which the defendant, who was a litigant in person, had not complied.
CitedCollier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
CitedTibbles v SIG Plc (T/A Asphaltic Roofing Supplies) CA 26-Apr-2012
The court considered applications for relief from sanction under CPR 3.1(7).
Held: An application under CPR 3.1(7) usually requires a change of circumstances.
Considerations of finality, the undesirability of allowing litigants to have . .
CitedDenton and Others v TH White Ltd and Others CA 4-Jul-2014
(De Laval Ltd, Part 20 defendant) (Practice Note) Several parties applied for relief from sanctions, having been refused at first instance:
Held: The court identified a three stage process. It should first calculate the seriousness and or . .
See AlsoThevarajah v Riordan and Others CA 4-Feb-2015
The court was asked whether the judge at first instance had been right to attribute an agreement which he had not made to the defendants.
Held: The defendants were liable to pay 2.205 million pounds. . .

Cited by:
CitedBPP Holdings Ltd and Others v Revenue and Customs SC 26-Jul-2017
The Revenue had challenged a decision by the FTTTx to bar it from defending an appeal as to VAT liability. It had failed first to meet procedural time limits and on the issue of an unless order had failed to comply. The Revenue challenged the . .

These lists may be incomplete.
Updated: 03 March 2021; Ref: scu.556979