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Biffa Waste Services Ltd v Dinler, High Court, 10 October 2013

14 November 2013
The issues

Jackson reforms – automatic strike-out – unless orders – relief from sanctions – delay

The facts

The claimant brought a claim for personal injuries after a road traffic accident. Standard fast track directions were given including timetabling, service of witness statements and the agreement of a bundle seven days before trial. The claimant failed to file a pre-trial checklist in time and did not pay listing and hearing fees. The deputy district judge made an unless order that the claim would be struck out unless the claimant complied. Witness statements were filed by the claimant 27 days after the original due date and just within the second deadline imposed by the deputy district judge but not received by the court office until the day before trial. The claimant did not attempt to agree the contents of the trial bundle with the defendant and served it the day before trial. On the first day the claimant said that an application would be made to apply for relief from automatic strike-out for the late payment of court fees. No explanation was given. The defendant applied to strike out the claim for failing to comply with the court orders and said that it had been unable to amend its pleadings to plead fraud due to the late service of witness statements. The judge did not strike the claim out but made a costs order against the claimant. The trial was adjourned. The defendant appealed.

The decision

The Jackson reforms had significantly changed the court’s attitude in non-compliance with the court orders. The court was required under CPR 3.9 to consider the issues of court time and resources. In this case there had been a flagrant disregard of the court’s orders by the claimant. The delays were significant in the context of a tight timetable. It was wholly unsatisfactory that witness statements were received the day before trial. It was foreseeable that the trial would have to be adjourned. When the matter had come before the judge, the judge had failed to identify the appropriate principles to be applied in considering relief from sanctions such as proportionality and the overriding objective and there was no evident balancing of factors. Taking all relevant matters into account and having regard to the Jackson reforms, relief from sanction should have been refused and the judge had erred in the exercise of his discretion. The automatic strike-out of the claimant’s claim stood.

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