Alerter by Christopher Adams – Application to set aside unless order which had not been served refused due to solicitors’ failure to check the CE-file

Click here to download this alerter by Christopher Adams.

In Little v Bloomsbury Law Solicitors [2022] 11 WLUK 351 Edwin Johnson J sitting in the Chancery Division of the High Court refused to set aside an unless order imposed by the court of its own motion in appeal proceedings after the appellant failed to file an appeal bundle within the applicable time limit. The unless order had not been served on the appellant but had been uploaded to the court’s CE-file, which the appellant’s solicitors had failed to check for around 2 years. The appeal had been struck out as a result of the appellant’s failure to comply with the extended time limit for filing an appeal bundle imposed by the unless order. The court also entertained an application for relief from sanctions, but refused to grant relief on the basis that although the unless order had not been served in accordance with r.6.20 of the CPR it had been uploaded to the CE-file, it was reasonable to expect the appellant’s solicitors to check the CE-file, and no good reason had been shown for failing to comply with the unless order. The application was dismissed and the appeal remained struck out.

Christopher Adams acted for the respondent.

Background

The respondent firm of solicitors had acted on behalf of the appellant in relation to the sale of a property in 2015, and received the proceeds of sale into its client account. After the property had been sold, the respondent became suspicious that the appellant might not be the true owner of the property and had no right to sell it. A dispute arose and the respondent retained the proceeds of sale over a number of years whilst it sought explanations in relation to the appellant’s use of different names and dates of birth, including reporting the matter to the police and other authorities. The appellant issued Part 8 proceedings in 2019, following which the respondent transferred the balance of the proceeds of sale to the appellant after making certain deductions and accounted to the appellant for interest accrued on the money whilst it was retained in the respondent’s client account. Master Teverson determined various outstanding issues and made orders as to costs on 16 December 2019 (see Little v Bloomsbury Law Solicitors [2019] EWHC 3510 (Ch)).

The appellant subsequently sought permission to appeal the parts of the Master’s order relating to costs and interest by e-filing an appellant’s notice on 20 January 2020 (the deadline for applying for permission to appeal having been extended by the Master). The respondent then made its own out-of-time application for permission to appeal in relation to costs. By paragraph 6.3 of PD 52B, the appellant was required to file an appeal bundle as soon as practicable, but in any event within 35 days of filing its appellant’s notice (so by 24 February 2020). Prior to that deadline, the respondent wrote to the appellant asking for confirmation as to whether or not the appellant had filed an appeal bundle. The appellant did not respond and failed to file an appeal bundle within the required time limit.

On 17 March 2020 the court made an unless order of its own motion requiring the appellant to file an appeal bundle by 17 April 2020. The order did not contain any provision for service on the parties, but was uploaded to the court’s CE-file on the same day that it was made. The order did contain a provision allowing any of the parties to apply to set aside or vary the order within 7 days of service of the order upon them. The appellant failed to file an appeal bundle by 17 April 2020, with the result that his appeal was struck out without further order of the court.

The appellant’s case was that his solicitors first became aware of the unless order upon reviewing the CE-file some 21 months later on 28 January 2022, following which the appellant filed an appeal bundle and made an application on 4 February 2022 for the unless order to be set aside pursuant to r.3.1(7) CPR and for the appellant’s appeal to be reinstated. The appellant did not make a formal application for relief from sanctions. The application was opposed by the respondent. By the time of the hearing the parties were in agreement that the application to set aside the unless order could also have been made under r.3.3(5)(a) CPR.

Issues at the hearing

At the hearing the court had to determine the following issues:

1. 1. Was the appellant in breach of the unless order, given that the order had not been served on his solicitors and that the appeal bundle had been filed within one month of the appellant becoming aware of the order?
   2. If so, was the appellant’s right to a fair trial under Article 6 ECHR engaged because the unless order had not been served on his solicitors?
   3. If not and the appellant was in breach of the order, should it be set aside pursuant to r.3.3(5)(a) CPR?
   4. If not, should the order be set aside under r.3.1(7) CPR?
   5. If not, was an application for relief from sanctions necessary or should the application be treated as an application for an extension of time for compliance with the unless order under r.3.1(2)(a) CPR having regard to the overriding objective?
   6. If so, should the court entertain an application for relief from sanctions in light of the fact that no formal application had been made?
   7. If so, should the appellant should be granted relief from sanctions?
   8. If no application for relief from sanctions was necessary, should the relevant time limit be extended pursuant to r.3.1(2)(a) CPR?

The court’s decision

The court found as follows:

• The appellant was in breach of the unless order, notwithstanding the fact that it had not been served on his solicitors in accordance with r.6.20 CPR. The terms of the order were clear. It required an appeal bundle to be filed by a particular date and could not be construed as meaning that the deadline for filing the appeal bundle did not apply in the absence of service.
• Article 6 ECHR was not infringed because unless orders were routinely made by the court and the protection for parties affected by such an order was a right to apply under the CPR to have the order set aside or varied, so the appellant was not left without a remedy in this case. Lack of service of the order was a separate matter to the making of the order itself, being a subsequent administrative error which, whilst plainly relevant and possibly highly significant in relation to the question of whether relief from sanction should be granted, did not engage the appellant’s Article 6 rights.
• Rule 3.3(5)(a) was the appropriate jurisdiction for setting aside the unless order because the order had been made by the court of its own motion. The correct approach was that the court should give due weight to the decision of the judge who dealt with the matter without a hearing and consider whether there was a good reason for disagreeing with the decision to make an unless order. The making of the order was entirely appropriate in the circumstances existing at the date it was made. The absence of a provision as to service of the order was not part of the Judge’s decision to make the order, but a subsequent administrative error which did not justify setting the order aside.
• Although the jurisdiction under r.3.1(7) to set aside the unless order was, in theory, also available, it was well known that the jurisdiction was a narrow one which could only be exercised in limited circumstances, and it was clear that this was not an appropriate case to set the order aside under that provision.
• The question as to whether an application for relief from sanctions was necessary arose from the judgment of Zacaroli J in Tyburn Film Productions Ltd v British Telecommunications Plc [2021] EWHC 334 (Ch) where he held that, on the facts of that case including an unless order having been made but not served, an application for relief from sanctions was unnecessary and the court should exercise its general case management power to extend or shorten time for compliance with any rule, practice direction or court order pursuant to r.3.1(2)(a) CPR having regard to the overriding objective. However, Tyburn and the reasoning of Zacaroli J could be distinguished in this case because it was not the case that the appellant had had no means of discovering that the unless order had been made. It had been uploaded to the CE-file, and it was perfectly reasonable to expect a legally-represented party to check the CE-file at regular intervals in the knowledge that an appeal was underway. An application for relief from sanctions was necessary.
• The court would entertain an application for relief from sanctions. Although the application had not been made formally, but rather informally by counsel for the appellant during the course of his submissions, applying the principles in Hadi v Park [2022] EWCA Civ 581 the respondent’s ability to oppose the application had not been impaired and the court had sufficient evidence to make a decision, and it would be an injustice to the appellant not to entertain the application whilst there would be no prejudice to the court or the respondent if the application was entertained.
• Relief from sanctions would be refused. There had been a serious and significant breach of the unless order with no good reason for the breach. The appellant’s solicitors could reasonably be expected to inspect the CE-file, but had not done so for nearly two years. It was not sufficient to attribute that to the general effect of the Covid-19 pandemic, and the appellant had failed to show that he had been prevented by the pandemic or otherwise from filing the appeal bundle. Filing the appeal bundle was an important step in the appeal process since it triggered consideration by the single judge of whether permission to appeal should be granted. Filing the appeal bundle in time was vital to the appeals process, and a failure to file a bundle required judicial time to be devoted to galvanising the parties and slowed down the appeals of other court users. The application had not been made promptly, being made very much at the last minute and for the first time at the hearing. Given the seriousness of the appellant’s breach, the fact that the respondent’s appeal remained extant was insufficient to tip the scales in the appellant’s favour. Considering all the circumstances, relief from sanctions was refused and the appellant’s appeal would remain struck out.
• If the appellant had not needed relief from sanctions, the court would have refused to extend time for filing the appeal bundle for the same reasons.

Comment

It may appear surprising that a court would refuse to set aside an unless order which was not served on any of the parties, but this was a case which turned very much on its facts. Whilst the court uploading documents to the CE-file does not amount to service for the purposes of r.6.20 CPR, lack of service alone may not amount to a sufficiently good reason to justify the granting of relief from sanctions if coupled with a lengthy and unexplained delay in taking reasonable steps on the part of the applicant. The courts have an expectation that legally-represented parties will take reasonable steps to progress proceedings, including checking the court CE-file at regular intervals. Parties who fail to do so for lengthy periods of time without good reason run the risk any application for relief from sanctions being refused.

This alerter is available to download as a PDF below.

To subscribe to Henderson Chambers news, alerters and updates please click here.