Testing the case against the judgments in Mitchell and Denton, Lord Justice Jackson held: 'It is not possible to classify the defendant’s breach as anything other than significant and serious.’
The Court of Appeal heard that during the three months the defendant’s solicitors were given to comply, the solicitor assigned to the case was called away with personal difficulties.
Jackson LJ would have been "strongly inclined" to grant the defendant relief from sanctions had the defendant applied for relief at the same time (or very soon after) it filed its Pre-Trial Checklist. The claimant might (and should) have consented to a prompt relief application. However, the defendant failed to apply for relief until a week after default judgment was issued, by which time the trial date had been lost. This delay was critical and consequently relief was refused.
The clear message is: delay at your peril.
Lord Justice Jackson has upheld a £211,000 claim won by default after the defendant missed their final chance to submit a court document. Sitting in the Court of Appeal, Jackson, whose reforms formed the basis of civil case management rules, said Oak Cash and Carry’s solicitors had been too late in applying for relief from sanctions. Attempting to defend a claim from an electricity supplier in British Gas Trading Ltd v Oak Cash & Carry Ltd, the defendant’s firm, south-east practice Bower and Bailey LLP, had already failed to file a pre-trial checklist within a three-month deadline set by a district judge. After being given an 'unless' order, in effect extending the deadline by two weeks, the defendant failed to serve the checklist until two days after the new limit. Even then, Jackson said the non-compliance could have been dealt with more leniently, but by the time Bower and Bailey applied for relief from sanctions a month later, the trial date had been lost. Judgment was given in the claimant’s favour by default. ‘The defendant’s lack of promptness in applying for relief is the critical factor,’ said Jackson, following a hearing last month. ‘When that delay is added to all the other factors, it can be seen that the defendant’s default has substantially disrupted the progress of the action.’