Legal update: a warning about the consequences of inaction in litigation

1 February 2016

Barbara Pipe v Spicerhaart Estate Agents Ltd [2016] EWHC 61 (QB)

This case concerns the Court’s refusal to grant an extension of time owing to a party’s conduct in an appeal. The Appellant, a former client of the Respondent estate agent, obtained permission to appeal following a county court judgment against her for unpaid fees.

On 15 October 2015, a Notice of Appeal was served on the Respondent. A Respondent’s Notice was not served.

Under CPR Practice Direction 52B, paragraph 6.3, the Appellant was required to file a bundle of documents relevant to the appeal within 35 days of the Notice. The “relevant” documents should have included the Respondent’s Notice and Skeleton Argument. In November, the Appellant’s solicitors reminded the Respondent to provide copies of these documents, but none were provided. 

By late November, the Appellant wrote to request that the missing documents be sent as soon as possible (paragraph 6.6 of the Practice Direction 52B directs that relevant documents obtained after the bundle has been filed should be added no less than seven days before the appeal hearing). There was no response.

The Court gave notice on 30 November that the appeal would be listed on either 17 or 18 December 2015. The Respondent finally sprung into action on 11 December 2015, sending a draft, unissued Respondent’s notice, further documentation and a Skeleton Argument to the Appellant but not until, as the judge noted, “after close of business”.

On 14 December 2015, three days before the scheduled hearing, the Respondent filed an application for an extension of time to file and serve its Notice and for relief from sanction disallowing reliance on the Notice as it was drafted, a test which applies the criteria from the case of Denton v TH White Ltd [2013] EWCA Civ 906 and CPR 3.9. It simultaneously invited the court to remove the appeal.

Taking into account the principles in Denton and the material parts of the CPR considered, the Court found that the Respondent:

  1. Was in serious or significant breach by not filing a Respondent’s Notice on time;
  2. Could not demonstrate a good reason for the breach; and
  3. That in all the circumstances of the case, proportionality and efficiency in litigation and the need to comply with rules, practice directions and orders, the Respondent’s conduct had prevented the parties from conducting litigation in a reasonably inexpensive manner.

The Court found that the Appellant and her solicitors had repeatedly sought to engage with the Respondent; the Respondent had repeatedly failed to engage until it was too late – much to its detriment: the application for an extension of time was accordingly refused and the Respondent was not allowed to rely on its Notice as drafted nor upon any other matter that should have been included in it.

By filing a Respondent’s Notice and Skeleton Argument on time and in the manner prescribed by the Court, the Respondent would have had an important opportunity to state why it thought the judge in the first instance had erred in accepting the Appellant’s evidence that led to the granting of permission to appeal. By failing to do so and indeed by failing to engage with the Appellant in any meaningful way, the Respondent missed its chance to put forward an argument and therefore potentially to win its case.

Parties to litigation should not underestimate the importance the Court – particularly in small claims cases – places on the overriding objective contained in CPR 1.1, that cases should be dealt with justly and at a proportionate cost. As such, this case serves as a stark reminder of parties’ obligations when commencing and continuing litigation: to comply with deadlines imposed by both the CPR and the Court, to engage actively with the other side, to work together to keep costs down, and that if there is a breach, to demonstrate it and then take steps to rectify it as soon as possible. There may be very serious consequences – financial or otherwise – for non-compliance.

Lily Whale

For more information on this subject please contact a member of our Dispute Resolution team.

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