England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(MR JUSTICE DAVID RICHARDS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th November 2012

Lord Justice Lewison:

1. The underlying dispute in this case concerns the beneficial ownership of a flat in Green Lanes, London. The flat was let to Miss Ginty, who was the secure tenant of it. She exercised the right to buy and acquired a leasehold interest in the flat in 2003. The money for the purchase was provided by Mr Mannion. He says that he and Miss Ginty agreed that in return for the provision of the purchase price he would allow Miss Ginty to live in the flat rent-free for three years, and that at the end of the three years she would transfer the flat to him. Miss Ginty says that the money was a gift from Mr Mannion to her, and that the reason for the gift was that they were then in a relationship.
2. Mr Mannion began proceedings originally in the High Court as long ago as September 2008. There is a defence, originally dated 11 February 2009. On 21 April 2009 Master Moncaster made an order for mutual disclosure by 29 May 2009 and transferred the case to the Central London County Court. Miss Ginty has been represented pro bono by Mr Moss from the Community Law Project. Miss Ginty did not comply with the disclosure order.
3. Over four months later, on 5 October 2009, District Judge Langley made an unless order. The effect of that order was that, unless Miss Ginty complied with the disclosure order by 27 October, the defence would be struck out. On 10 November Mr Mannion applied for judgment on the basis that Miss Ginty had failed to comply with the unless order. A hearing took place before HHJ Marshall QC on 22 December. Both parties were represented. She decided that District Judge Langley's order had not been complied with, and gave judgment for Mr Mannion. Miss Ginty did not apply for relief against sanctions at that time. However, the judge suspended enforcement of the order provided that an application for relief against sanctions was made and served by the 18 January 2011, thus giving Miss Ginty nearly another month in which to make the application. It is important to note that the judge's order required not only that the application be made by 18 January, but also that it be served by that date.
4. On the very last day permitted by the judge's order, Miss Ginty lodged an application for relief against sanctions; but it was not accompanied by the requisite fee, and inadequate evidence was supplied at that time to show that Miss Ginty was entitled to fee remission. On the same day, according to the judge's subsequent note, Mr Moss sent a copy of the unissued application and witness statement to Mr Mannion's solicitors by post. The judge decided that, even if the application had been made in time, it had not been served in time, with the consequence that the defence remained struck out. Her order to that effect is dated 7 May 2010. There has been no appeal against that order. It must follow therefore that Miss Ginty's defence remains struck out.
5. Mr Moss has submitted this morning that the reason that no appeal was made against that order was that he did not know why the application was refused. But he knew that it had been refused. A failure to give reasons is in itself a ground of appeal, and in my judgment there has been no adequate explanation why no appeal was made against the order of 7 May.
6. On 22 October 2010, now more than five months later, Miss Ginty applied for relief against sanctions. That application came before HHJ Marshall on 23 November. She dismissed the application and made an order authorising the execution of a transfer of the flat from Miss Ginty to Mr Mannion. She took the view that the application for relief against sanctions had been made so late as to amount to an abuse of process. It is against that order, and that order only, that Miss Ginty has sought to appeal.
7. The application notice was filed on 15 December 2010. The application for permission to appeal was first dealt with by Roth J on the papers. On 12 January 2011 he made an order for the listing of the application. He noted, however, that a number of important documents were not included in the appeal bundle and directed Miss Ginty to file a full appeal bundle within 21 days; that is to say, by early February. His order identified particular documents that were missing. Miss Ginty did not comply with that direction. The application came back before Roth J on 15 April 2011. The direction had still not been complied with. He now made an unless order, the effect of which was that, unless Miss Ginty filed the bundle by 4pm on 3 May 2011, the application for permission to appeal would be struck out. Miss Ginty did not comply with that order either. However, on the very last day for compliance Mr Moss sent an emailed letter to the court asking for an extension of time until 7 May, which happened to be a Saturday. Roth J recorded that the extension of time was asked for on the basis that Mr Moss had explained that he would be sending the bundle by first class post, and he extended time, as Mr Moss had asked.
8. The bundle was indeed sent by first class post, but not until 9 May. It arrived at court on 12 May. Roth J decided on 17 May that the conditions in his earlier order had not been complied with, with the consequence that the application for permission to appeal would be struck out. There has been no appeal against any of Roth J's orders. Instead, on 10 August 2011, nearly three months later, Miss Ginty applied for relief against sanctions. Our appeal bundle does not appear to contain any copy of the application notice by which relief against sanctions was sought, nor any evidence in support. That application came before David Richards J on 4 October 2011. He dismissed it. In essence, he took the view that there has been a series of failures by Miss Ginty to comply with the court orders, culminating in the striking out of her application for permission to appeal. He took the view that the critical period of delay for the purposes of the application was a delay between the strike out on 17 May and the application for relief on 10 August.
9. Mr Moss has subsequently made a witness statement, dated 24 October 2011. In that witness statement he says that he tried to cause the bundle to be hand-delivered on Saturday 7 May but that the Chancery Office was closed. Security staff offered to take delivery of the bundle, but Mr Moss's representative refused that offer. The bundle was not hand-delivered on the following Monday but instead was posted on 9 May, and arrived, as I have said, on Thursday 12 May, but there is still little explanation of the delay between 17 May and 10 August, when the application was issued.
10. With the permission of Arden LJ, Miss Ginty appeals against the decision of David Richards J. The principal ground of appeal is that the order refusing relief against sanctions is disproportionate because it would result in Miss Ginty losing her home without her defence ever having been tried on the merits. That is said to infringe her rights under Articles 6 and 8 of the European Convention on Human Rights.
11. CPR 3.9 provides as follows:

"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol(GL);

(f) whether the failure to comply was caused by the party or his legal representative;

(g) whether the trial date or the likely trial date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party; and

(i) the effect which the granting of relief would have on each party."

CPR 3.9(2) states in terms that:

"An application for relief must be supported by evidence."

12. Whether to grant relief against sanctions is a discretionary decision. The exercise of that discretion is entrusted to the first instance judge. This court can only interfere if the judge has taken account of irrelevant factors, ignored relevant factors or reached a decision that is plainly wrong. Mr Moss thus accepts that, particularly in the light of recent observations in this court notably Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd [2012] EWCA Civ 224 [2012] FSR 807, he has a high hurdle to surmount.
13. There is no doubt in my mind that, compatibly with Article 6 of the Convention, the court can make summary orders disposing of proceedings. There is equally no doubt that it can make orders striking out proceedings if its own orders are not complied with. This power is not removed merely because a dispute relates to someone's home, but Article 8 does of course require consideration of the effect which the strike out or the refusal of relief from sanctions would have.
14. The judge considered the evidence before him in paragraph 8 of his judgment. His conclusion on that evidence was that it did not explain why no steps were taken to seek relief against sanctions which were clearly indicated as the proper course in the order made by Roth J on 17 May. That, as it seems to me, goes to CPR 3.9(1)(b), namely whether the application for relief had been made promptly. The judge continued, in paragraphs 9 and following of his judgment, as follows:

"In considering whether the court should grant relief from sanctions the court must have regard to the matters listed in CPR 3.9. In my judgment, the great bulk of those matters indicate or would support the view that in this case relief from sanctions should not be granted. There has been a history in these proceedings of a failure by Miss Ginty or her representative to comply with orders of the court, and I have referred to those earlier in this judgment. The administration of justice requires that there should be proper compliance with orders and the interests of parties to litigation require that. I will return briefly to that in a moment. The delay in the issue of this present application is not one which in my judgment is adequately explained by the evidence.

10. The failure to comply in this case would appear to have rested with the legal representative of Miss Ginty rather than the party, and I accept that the effect of a refusal of relief on Miss Ginty is that there can be no consideration of her application for permission to appeal, in a case which relates to ownership of the flat which she currently (and has for some years) occupied. So I am in no doubt the effect of a refusal of relief is a very serious matter for her. But equally, the claimant has been engaged for a considerable time in litigation with a view to resolving these issues and I have to pay proper regard to his interests as well.

11. Balancing the various factors at work in this case, I come to the conclusion that this would not be an appropriate case in which to grant the relief from sanctions which is sought by the application, which I accordingly dismiss."

15. Mr Moss has submitted that the judge did not adequately rehearse the medical evidence which explained the delay. The judge, he said, did not go through CPR 3.9 point by point in a display of structured decision-making, and the judge underplayed the consideration that the failures to comply were not Miss Ginty's fault but were instead the fault of the community law project. In my judgment, the judge did go through the factors listed in CPR 3.9(1), albeit in a rather compressed way. Picking up paragraphs 9 and 10 of his judgment again, he pointed out that there had been a history in the proceedings of a failure by Miss Ginty to comply with orders of the court. That was a consideration of the factor referred to in CPR 3.9 (1) (e). He then pointed out the administration of justice required there should be proper compliance with orders. That was a consideration of the factor referred to in 3.9 (1) (a). He then said that the delay in the issue of the application was not adequately explained by the evidence. That was the consideration of the factor in 3.9(1)(d). He next pointed out in Miss Ginty's favour that the failure to comply rested with the legal representative. That was a consideration of a factor in 3.9(1)(f). He then considered the effect of the refusal of relief on Miss Ginty. That was the consideration mentioned in CPR 3.9(1)(i), but he also had regard to the effect on Mr Mannion of the grant of relief. That is also the same factor; aas well as the factor mentioned in CPR 3.9(1)(h).
16. In considering the effect on Miss Ginty of the refusal of relief from sanctions, he also took into account or, in the language of Article 8, "had respect for" Miss Ginty's home.
17. Indeed, it might well be said that the judge took an approach that was very favourable to Miss Ginty, concentrating as he did on the delay between 17 May and 10 August rather than the history of appalling delay throughout this litigation; and also without taking into account HHJ Marshall's view that the application for relief against sanctions made on 22 October, which was the only subject matter of the proposed appeal, had been made so late that it was in itself an abuse of process.
18. As Mr Moss recognizes, and it has been said more than once in this court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance judges. It has also been said, not least by Jackson LJ, that the culture of toleration of delay and non-compliance with court orders must stop. I can find no fault with the judge's approach or with the exercise of his discretion. I would therefore dismiss the appeal.

Lord Justice Mummery:

19. I agree.

Lord Justice Jackson:

20. I agree.

Order: Appeal dismissed