Terry Gallivan and Jane Hodgson successful in High Court relief from sanction application

18th November 2019

Al-Balhaa v (1) Raphael (2) RMG Residential Management Group Ltd (3) Termhouse (Clarendon Court) Management Ltd (4) Clarendon Court (London) Freehold Ltd [2019] EWHC 1323 (QB)

The Appellant lived in Sweden but was the leaseholder of a flat in London in which his sister lived. Between 2013 and 2015, the Appellant and his sister brought a series of claims against the freeholder, the management company, the managing agents and the caretaker of the building (the Respondents)  The claims were consolidated and a Defence was served in early 2016. The judge ordered that unless the Claimant served a trial bundle that complied with CPR PD 39A para.3, and on receipt of the Defendants’’ comments, either filed and served a revised bundle or a supplementary bundle including any additional documents requested by the Defendants, the claims would stand struck out.

Despite prompts, the Appellant failed to comply and the Respondents’ solicitors applied for a declaration that the claims were struck out. At the application hearing, the judge held that the non-compliance was serious: in particular, the trial bundle was not properly paginated, the Appellant’s sister had inserted previously undisclosed material, she had substituted material, written personal comments on the Respondents’ documents and not incorporated their requested corrections. Towards the end of the hearing, she made an oral application for relief from sanctions. The judge stated that even if there had been a formal application for relief, he would have rejected it because he was not satisfied that, by the date of the trial, a functioning trial bundle would have been produced. He declared the claims struck out.

The Appellant and his sister appealed the declaration. The Appellant submitted that the judge had erred because, contrary to Rehman v Rehman [2017] EWHC 2418 (Ch), he had not gone through the three-stage test set out in Denton v TH White [2014] EWCA Civ 906.

Nicol J. held that the lower judge had not erred in principle. Whilst it might have been preferable for the judge to have expressly addressed each of the Denton stages, it was apparent that he had considered all three. It was clear the judge considered the breach of PTR directions to be both serious and significant. Although the judge did not specifically consider stage 2 and did not expressly consider each of the Appellant’s sister’s explanations for her non-compliance with the unless order, it was implicit in his decision that he was unimpressed by them. Finally, in all the circumstances, the refusal of relief was not unjust. CPR r.3.9(1) specifically referred to the need for litigation to be conducted efficiently and at proportionate cost, and to the need to enforce compliance with rules, practice directions and orders. The efficient conduct of a trial is substantially hampered if bundles are not properly paginated, if documents are omitted, if the different bundles are not identical as well as the other concerns identified by the judge. Nicol J. held that the judge’s exercise of discretion in this case was not irrational or otherwise flawed and he dismissed the appeal.

A copy of the judgement can be found here.

The Court of Appeal has refused the Appellant‘s application for permission to appeal the High Court’s decision.

Terry Gallivan, instructed by PDC Law, represented the First, Third and Fourth Respondents. Jane Hodgson, instructed by RPC, represented the Second Respondent.