More Denton fallout

Two cases at the end of 2014 considered the ongoing fallout from Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton v TH White and Others [2014] EWCA Civ 906 particularly with regard to those principles being applicable to CPR 3.4 strike-out applications.

Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607 was the defendant’s appeal against a refusal by HHJ Mackie QC to strike out the claimant’s case for failing to comply with court orders. The defendant, who was unrepresented, was also in breach of some orders, including costs orders.  The two main points from the Court of Appeal’s judgment are:

• Mitchell principles, as restated in Denton, are relevant and important to an application under CPR 3.4 to strike out for non-compliance with a court order [44]
• However, a crucial difference is that in a strike-out application the proportionality of the sanction itself is in issue, whereas an application for relief from sanctions proceeds on the basis that the sanction imposed was proportionate [44]

The Court of Appeal applied these principles when considering the appeal.  Despite finding a serious breach with no good reason for it, consideration of all the circumstances of the case led to a decision to uphold the HHJ’s refusal to strike out.  One of the circumstances was the defendant’s conduct which the Court of Appeal said “smacks of the opportunism and lack of cooperation that were roundly criticised by the court in Denton.” [48]

Mitchell, Denton and the Jackson reforms were also recently considered in the Supreme Court. HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd and another [2014] UKSC 64 involved a Saudi Prince who was directed by a court order to sign a disclosure list personally.  He declined to do so. A peremptory order was made in regard to signature which the Prince did not comply with.  Judgment was entered and the Prince sought relief from sanctions.  Referring to the Jackson reforms, Lord Neuberger reiterated that one of the important aims of the changes embodied in the CPR was to “ensure that procedural orders reflected, not only the interests of the litigation concerned, but also the interests of the efficient administration of justice more generally.” [25]

Outlining the consequences of non-compliance with orders, Lord Neuberger said:

“The importance of litigants obeying orders of court is self-evident. Once a court order is disobeyed, the imposition of a sanction is almost always inevitable if court orders are to continue to enjoy the respect which they ought to have. And, if persistence in the disobedience would lead to an unfair trial, it seems, at least in the absence of special circumstances, hard to quarrel with a sanction which prevents the party in breach from presenting (in the case of a claimant) or resisting (in the case of a defendant) the claim. And, if the disobedience continues notwithstanding the imposition of a sanction, the enforcement of the sanction is almost inevitable, essentially for the same reasons. Of course, in a particular case, the court may be persuaded by special factors to reconsider the original order, or the imposition or enforcement of the sanction.” [23] 

However Lord Neuberger quoted the first instance judge with approval when he said that striking out a statement of case is one of the most powerful weapons in the court’s case management armoury and should not be deployed unless its consequences can be justified [16].