Now do as you are told!

17 January 2014. Published by Alexandra Anderson, Partner

In the case of Thavatheva Thevarajah -v- John Riordan and Others, the Court of Appeal has once again made clear that, if you fail to follow directions for a claim, you will be penalised.

This follows the approach that the courts have adopted since the infamous Andrew Mitchell case, where his solicitors failed to lodge a costs estimate on time. The clear message coming from the Courts is that, in the absence of (a) excellent reasons and (b) a timely application for relief (preferably before the default occurs), any kind of default will be severely punished.

In the Thevarajah case, a dispute arose about the sale of a pub by the Defendants to the Claimant.   During the course of the proceedings, the Claimant obtained a disclosure Order against the Defendants, in the form of an 'Unless' Order.  The Defendants failed to comply with the Order, so that their Defence was struck out.  The Defendant applied for relief from sanction. Their application was initially refused but then allowed. The Claimant appealed to the Court of Appeal.   In a unanimous decision, the Court of Appeal concluded that there was no basis to grant the Defendants relief from sanction.  In their view, not only had the District Judge not been entitled to reconsider the original decision to refuse the Defendants' application, but also there was absolutely no basis for finding in their favour.  Even though the Defendants had subsequently complied with the Unless Order, that did not change the fact that they had not complied with its strict terms, and every court must now adopt the robust approach taken to applications for relief from sanction, as set out in the Mitchell case.  Enforcement of rules, practice directions and orders are now paramount, and it would seem these factors will outweigh any considerations of 'justice' and 'prejudice', to which applicants would usually refer in these circumstances.

So the message is clear. Either do as you are told or suffer the consequences.

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