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Keith v CPM Marketing Limited, Court of Appeal

7 September 2000
The issues

What sanctions should be applied by the Court when the Defendant was in breach of an Order.

The facts

The Defendant applied for an Order extending time for complying with an amended order which provided that unless they served outstanding equipment to solicitors acting for the Claimant within 21 days or the Defence would be struck out. The Judge (Overend, sitting at Plymouth) further ordered that the Defence be struck out for non compliance with the unless order and entered judgment on liability for the Claimant on her PI claim and further directed the Defendant should not be permitted to call evidence in relation to the assessment of damages but only to be permitted to attend the trial and to cross-examine.

The claim was for £160,000.00 and related to manual handling. Liabilty was disputed.

Non disclosure related to items which were not in the Defendant’s possession or control because they had belonged to their customers and were no longer or not currently available.

The decision

The Application for an extension of time had been brought within the time for compliance and was made pursuant to Rule 3.1 (2) (a). The Court was bound to take into account the overriding objective and exercising any of its powers.

The Defendant was seeking leave from the sanctions sets out in the order if their application for an extension failed.

In the case of a formal request for leave, see Rule 3.9 (1) which set out the obligation of the Court to consider all the circumstances on an application for relief of failure to comply.

In Bansall v Cheema C.A. (March 2nd 2000) the Court set out the need for Court’s exercising their discretion to consider each matter listed systematically. The Court had to take into account the matters listed in Rule 3.9 (1).

In this case the Judge did not take into account those matters. His order was the strongest order available to him and it was disproportionate in the circumstances for the Defendant to be disbarred in the way in which the Judge had ordered. He should have ensured that the Defendant’s indemnified the Claimant for costs in respect of the request for disclosure to be assessed and paid forthwith. He could not order production if the Defendants could not produce the items. If he was satisfied that they could produce further items he should have made a further order limited to those items.

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