2.6 Case management powers, sanctions and relief

Question 1

What is the effect on case management of a party being unrepresented?

Answer 1

CPR 3.1A
(2)
the court must have regard to the fact that at least one party is unrepresented;
(3)
parties and the court must take the standard directions as their starting point and adapt them as appropriate;
(4)
the court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective;
(5)
the court may assist with cross-examination.

Question 2

If a court decides to make an order of its own initiative (unrequested by the parties), does it have to give them a chance to make representations?

Answer 2

CPR 3.3(4)
The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

Question 3

Can parties apply to set aside orders made by the court of its own initiative?

Answer 3

CPR 3.3
(5)
(a)
a party affected by the order may apply to have it set aside, varied or stayed; and
(b)
the order must contain a statement of the right to make such an application.
(6)
Applications must be made within a deadline set by the court or seven days if the court sets no deadline.

Question 4

What must the court do before holding a hearing on an order it proposes to make of its own initiative?

Answer 4

CPR 3.3(3)
…
it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.

Question 5

Which Rule deals with strike out?

Answer 5

CPR 3.4

Question 6

What is strike out?

Answer 6

Where the court deletes part or all of a statement of case.

Question 7

When should a court exercise its power to strike out?

Answer 7

CPR 3.4(2)
(a)
the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b)
that the statement of case is an abuse of the process or likely to obstruct the just disposal of the proceedings; or
(c)
there has been a failure to comply with a rule, practice direction or court order.

Question 8

What is the difference between strike out and summary judgment?

Answer 8

Strike out focuses on statements of case whose contents disclose no reasonable ground of claim.

Summary judgment deals with cases that are weak on their facts (CPR 24).

Question 9

What is the difference between strike out and default judgment?

Answer 9

Default judgment in CPR 12 is the consequence of the defendant failing to respond to a claim. Default judgment is therefore procedural.

Strike out is not purely procedural.

Question 10

Give some examples of statements of case that could be struck out for bringing no reasonable ground of claim.

Answer 10

3A PD 1.4 and 1.6

Claims that set out no facts explaining what the case is about.

Claims that do not set out any legally recognisable claim / cause of action.

Defences which state that the claim is denied without providing any reasons for that denial contrary to CPR 16.5.

Statements of case that do not make sense.

Question 11

What is abuse of process?

Answer 11

Attorney General v Barker [2000] 1 FLR 759
Bingham LJ: “using that process for a purpose or in a way significantly different from it ordinary and proper use”.

3A PD 1.5
A claim may fall within rule 3.4(2)(b) [abuse of process] where it is vexatious, scurrilous or obviously ill-founded.

Question 12

What will the court take into account when considering whether to strike out a claim for failure to comply with a rule, order or practice direction?

Answer 12

Whether it is still possible for the parties to receive a fair trial and weigh this against any prejudice suffered by the innocent party.
Instead, the court would be more likely to make an order imposing a sanction for non-compliance.

Question 13

Which Rule deals with procedure for judgment after strike out?

Answer 13

CPR 3.5

Parties can apply for judgment with costs, as well as orders to deliver goods and other suitable orders.

Question 14

Which Rule deals with setting aside judgments after strike out?

Answer 14

CPR 3.6

Question 15

Apart from making judgment for one side, what else can the court do following strike out?

Answer 15

CPR 3.1

The court can exercise its general powers of case management to sanction a party or impose other appropriate orders.

Question 16

What are the main sanctions which a court may impose following strike out?

Answer 16

CPR 3.1(3)(a)
Making an order subject to conditions, including a condition to pay money into court.

CPR 3.1(3)(b)
Specifying the consequences of failure to comply with an order or condition. (An “unless order” must comply with CPR 2.9.)

CPR 3.1(4)
When giving directions, the court will take into account whether or not a party has failed to comply with a rule, practice direction or relevant pre-action protocol.

[There are also situations where sanctions are imposed automatically - eg, CPR 35.13 and CPR 3.14.]

Question 17

What is an unless order?

Answer 17

[An unless order is an order which provides for an automatic sanction in the event of non-compliance with the order. The unless order must specify the date and time within which the act must be done (CPR 2.9).]

CPR 3.1(3)
When the court makes an order, it may –
(a)
make it subject to conditions, including a condition to pay a sum of money into court; and
(b)
specify the consequence of failure to comply with the order or a condition.

Question 18

What happens if a party fails to comply with an order?

Answer 18

CPR 3.8(1)
If a party fails to comply with a rule, practice direction or court order imposing a sanction, the sanction takes effect pursuant to CPR 3.8(1) unless the party applies for and obtains relief from that sanction under CPR 3.9.

Question 19

What if a party needs more time to comply with a rule, practice direction or order?

Answer 19

CPR 3.8(3) and (4)
The parties may by written agreement extend the deadline by up to 28 days as long as the hearing date is not put at risk.

CPR 2.11 allows for time limits to be varied by written agreements between the parties, but this is subject to CPR 3.8(4).

Question 20

What if a party needs to vary the case management timetable?

Answer 20

CPR 29.5(1)
A party must apply to the court if he wishes to vary the date which the court has fixed for—
(a)
a case management conference;
(b)
a pre-trial review;
(c)
the return of a pre-trial check list under rule 29.6;
(d)
the trial; or
(e)
the trial period.

Question 21

Is there anything to stop parties being unreasonably obstructive when the other side seeks agreement on an extension?

Answer 21

CPR 1.3
The duty on the parties to assist the Overriding Objective.
The parties should be ready to agree limited but reasonable extension of time up to 28 days as envisaged by CPR 3.8(4) where possible.

Question 22

What must the court consider if a party applies for relief from sanctions?

Answer 22

CPR 3.9
(1)
… the need—
(a)
for litigation to be conducted efficiently and at proportionate cost; and
(b)
to enforce compliance with rules, practice directions and orders.
(2)
An application for relief must be supported by evidence.

Question 23

What is the leading authority on relief from sanctions under CPR 3.9?

Answer 23

“Denton”:
Denton and others v TH White Ltd and another, Decadent Vapours Ltd v Bevan and others and Utilise TDS Limited v Davies and others [2014] EWCA Civ 906

Question 24

What is the Denton test?

Answer 24

Denton [2014] EWCA Civ 906
1.
Was the breach serious or significant? If not, grant relief.
2.
Consider the reason for the breach.
3.
Evaluate all the circumstances with regards to CPR 3.9(1)(a) efficiency and proportionate cost and (b) the need to enforce compliance.

[A useful test of whether a breach has been serious or significant is whether it has imperilled future hearing dates or otherwise disrupted the conduct of litigation. See Jackson LJ’s dissent.]

Question 25

Is an application for an extension of time an application for relief from sanctions?

Answer 25

Chartwell Estate Agents Ltd v Fergies Properties SA [2014] EWCA Civ 506
An application for an extension of time … is not an application for relief from sanctions provided that the applicant files his application before expiry of the permitted time period.

Question 26

Is an application to set aside a default judgment an application for relief from sanctions?

Answer 26

An application to set aside default judgment is treated as an application for relief from sanctions when the defendant is relying on the discretionary ground in CPR 13.3. The Denton principles apply.