QUEEN'S BENCH DIVISION
Rolls Building, Fetter Lane, London, EC4A 1NL
B e f o r e :
||Case No: 2011-1214
Newland Shipping & Forwarding Ltd
|- and -
|Toba Trading FZC
||Case No: 2011-1213
|Newland Shipping & Forwarding Ltd
|Toba Trading FZC
|Mr Syed Majed Taheri
|Mr Hossein Rahbarian
Stephen Cogley QC and Peter Ferrer (instructed by Stephenson Harwood LLP) for the Defendant and First and Third Defendant
Hearing dates: 28 January 2014
Crown Copyright ©
Mr Justice Hamblen :
(1) D1's defence and counterclaim in 2011 Folio 1213 ("Action 1213") was struck out and judgment entered against D1 for US$7,260,382;
(2) D1's defence and counterclaim in 2011 Folio 1214 ("Action 1214") was struck out and judgment entered against D1 for US$1,752,291;
(3) Judgment was entered against D3 in Action 1213 in the sum of US$7,260,382.
"(a) Standard disclosure is to be made by 20 September 2013, with inspection 7 days after notice.
(b) Signed witness statements of fact and hearsay notices in 2011 Folio 1213 are to be exchanged by no later than 25 October 2013."
"We regret to inform that our solicitor Mr Rovine Pradeep Chandrasekera of Messrs STEPHENSON HARWOOD LLP has caused us some difficulties whilst we do not deny that we had some financial disagreement with each other;
1) He informed us on Wednesday (23rd Oct. 2013) that he had resigned; as a result we didn't have enough time to prepare our witness statement in the two remaining days considering the fact that we could not have any access to new and vital documents in the claimant's disclosure list.
2) He unreasonably refused to submit to us the relevant documents sent by Holman Fenwick Willan LLP during the process of disclosure and to prepare the witness statement to be exchanged on 25th October 2013. Considering the foregoing and the remaining time, it has been impossible for the witness statement/s to be exchanged on time, pursuant to Court Order on 26th July 2013; therefore we need more time to prepare the relevant witness statement .
3) We wrote to the claimant's attorney (via email) on 25th Oct. 2013 regarding this situation and asked him to delay the exchange of the witness statement which was not accepted by him.
4) We asked for several times from our solicitor to request a 30-day adjournment following disclosure documents exchange for witness statement but he did not do so.
Finally, we request for a one-month adjournment (extension of time) in order to be able to submit the witness statement."
1. "We write to raise this fact that since our former solicitor, Stephenson Harwood LLP, ceased to act for us and an Order made by Males J on 4th November for the removal of Stephenson Harwood LLP from the court record, it is practically impossible for us to represent ourselves in the court hearing listed for 15 Nov. 2013 or to engage a new solicitor to attend the said hearing on behalf of us having regard to the brief time remained. Considering this fact, we seek an adjournment of the above mentioned hearing for a proper time based on the court discretion.
2. As a sign of good faith and in order to not delay the court proceeding, we applied for UK visa to attend 15th Nov. listed hearing; however, we have been unable to obtain the visa yet as it is a time-consuming process and British embassy is not active in Iran so we had to apply for visa through neighbouring countries.
3. As we mentioned in our Application for Adjournment of exchanging Witness Statements dated 30th Oct. 2013, our former solicitor, Stephenson Harwood LLP, unreasonably refused to submit to us the relevant documents sent by Holman Fenwick Willan LLP during the process of disclosure so we were unable to prepare our witness statement on time. We arranged to collect the said documents from our former solicitor in order to make our witness statement. Therefore, the requested adjournment for exchanging Witness Statement is again sought based on the foregoing facts
4. The Original hard version of this Application shall be promptly dispatched to the court office via a first class courier (like DHL)."
The relevant principles
"A power of the court under these Rules to make an order includes a power to vary or revoke the order."
"…The discretion might be appropriately exercised normally only (i) where there had been a material change of circumstances since the order was made; (ii) where the facts on which the original decision was made had been misstated; or (iii) where there had been a manifest mistake on the part of the judge in formulating the order. Moreover, as the court emphasised, the application must be made promptly..."
"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 of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders."
The application under CPR 3.1(7)
(1) whether there has been a material change of circumstances since the order was made;
(2) whether the facts on which the original decision was made had been misstated;
(3) whether there has been a manifest mistake on the part of the judge in formulating the order.
(1) That there had been no prior default by the Defendants.
(2) D1 and D2's application to strike out/summary judgment had originally been adjourned because of the Claimant's conduct.
(3) The fact that the Defendants had made an application to extend time for witness statements.
(4) The fact that the 1213 and 1214 actions had been ordered to be heard together and not consolidated. Further, defaults in action 1213 would not impact on action 1214, as the Claimant asserted.
(5) The costs history was presented in a one sided way.
(6) No mention was made of the fact that costs orders had been made against the Claimants, including "unless" orders.
(7) It was wrong to assert that D1 and D3 had turned their back on or were manipulating the proceedings, as the full factual history would have made clear.
(8) The Defendants' arguments in relation to the non-availability of any claim for the price was wrongly described as being technical.
(9) The difficulties for Iranian parties to obtain clearance to fund new representation was not explained.
(10) It was not pointed out that the reason that there was no Amended Defence was because there had not yet been any requirement to do so.
(11) It was not pointed out that the figures claimed gave no proper credit for the counterclaim.
(12) It was not pointed out that there is no prospect of enforcement in Iran and that D2 had no assets in the UAE to enforce against.
(13) It was wrongly suggested that there was no substance to the Defendants' forum conveniens arguments.
(14) There was no mention made of the Defendants' application to adjourn.
The application under CPR 3.9
"33. This action relates to the claim by Newland against Toba in relation to ULSD cargo. Cooke J's Order dated 22 February 2013 [I refer to pages 34 to 35 of MTP9] provides for that the cases are to be "listed and heard together and at the same time". There are no outstanding obligations regarding the action in Claim Number 2011-1214.
34. However, given the Order for joining the actions and effectively consolidating both actions and the fact that Toba have apparently abandoned the litigation in Claim Number 2011 -1213 it seems unlikely that they will be willing to engage in further litigation with Newland in Claim Number 2011-1214. The Order of Males J referred to both Claim Number 2011-1213 and 1214. [I refer to page 10 of MTP9]. The covering letter attaching Males J's order. [I refer to page 9 of MTP9] referenced both actions as too did Stephenson Harwood's initial letter informing HFW that they had ceased to act [I refer to page 1 of MTP9]. Toba therefore lacks representation in both actions.
35. Claim Number 2011-1213 and Claim Number 2011-1214 are now a joined action. Given this consolidation, the breaches of the orders in Claim Number 2011-1213 also affect the claim in Claim Number 2011-1214, as they are now the same action. An inability to meet the trial timetable in Claim Number 2011-1213 will continue to impact on Claim Number 2011-1214, which although ready for trial cannot be heard until the timetable for Claim Number 2011-1213 has been complied with. Given the above apparent abandonment of the claim by Toba, it appears unlikely that Toba will engage any further in this litigation. Therefore a default under the trial timetable obligations in Claim Number 2011-1213, which is now, intertwined with the fate of Claim Number 201-1214 means that Toba is effectively in default in both actions. For this reason, Newland request that judgment be entered against Toba as per its application dated 29 October 2013 pursuant to CPR Part 3."
(1) the nature of the non-compliance and whether it can be characterised as "trivial"
(1) An allegedly inadequate disclosure list from D1;
(2) A failure to file separate disclosure lists on behalf of D1 and D3;
(3) A failure to serve witness statements by 25 October 2013.
(2) whether there is a good reason why the default occurred
(1) D1 and D3 were unrepresented;
(2) D1 and D3 had applied to Court for an adjournment
(3) The Court does not seem to have been aware of D1 and D3's applications.
(4) The full picture was not properly presented to the Court.
(5) The majority of the defaults were trivial;
(6) The application was made when D1 and D3 were 2 working days late.
(7) The Claimant has obtained double recovery (damages and claim for price) and failed to inform the Court that US$3.6 million was admitted to be owed to D1.
"On an application for relief from any sanction imposed for 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;
(f) whether the failure to comply was caused by the party or his legal representatives;
(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."
(a)The interests of the administration of justice are served by insisting on compliance with court orders, as Mitchell makes clear. This is particularly so in the context of a case with a shortly pending trial date.
(b) The application was not made promptly.
(c)The fact that a failure to serve witness statements by the deadline would breach the court order was well appreciated. It was the inevitable result of a deliberate course of action.
(d) There is no good explanation for the defaults.
(e) There was no prior non-compliance.
(f) The defaults were to a significant extent caused by D1 itself.
(g) The trial date is unlikely to be met if relief is not granted.
(h) The failure to comply prejudiced proper and timely preparation for the pending
(i) The granting of relief would cause serious prejudice to the Claimant if, as is
likely, the consequence is that the trial date cannot be met.