Pannone LLP v Aardvark Digital Ltd

In this case an order was made by consent that the Claimant should file and serve its Reply and Defence to Counterclaim in an action proceeding in the Manchester District Registry by no later than 1pm on 26 October 2009. The order further provided that if the Claimant did not comply therewith “the Claimant’s claim be struck out and the Defendant have permission to enter judgment in full for its counterclaim”.

The Claimant was a few minutes late in filing and serving the required statement of case – six minutes late in filing and two minutes late in serving, although the process of filing by fax and serving by email was initiated in each case before the deadline.

CPR 3.1(2)(a) gives to the court power to extend the time for compliance with any court order. CPR 3.8 provides that sanctions for failure to comply imposed by a court order will have effect unless the party in default applies for and obtains relief from the sanctions. CPR 3.9 sets out the circumstances which the court will consider on such an application.

Permission to bring a second appeal was granted in this case because it appeared to raise for decision the question whether the power to extend time in rule 3.1(2)(a) and the power to relieve from sanctions in rule 3.8 is available where the relevant order has been made by consent. In the event it was not ultimately argued on the appeal that the powers are in such circumstances unavailable, although it was argued that they should not have been exercised in this case. However since the Appellant was not legally represented and initially seemed to argue that the powers were here unavailable, and since it has not hitherto been decided by the Court of Appeal whether the powers are available in relation to a consent order, it is appropriate to approach the matter from first principles. I say this by way of introduction since it might be thought that, if the discretionary power is available, it is inappropriate to review its exercise in circumstances where the case for an extension of time and relief from sanctions was simply overwhelming, as recognised by the two lower courts.

Pannone LLP the Claimant Respondent is a firm of solicitors. Aardvark Digital Limited the Defendant Appellant is a multi-media design house specialising in the development and design of fitness equipment.

In January 2009 Pannone began proceedings in the Manchester County Court against Aardvark claiming in respect of unpaid invoices dated between June and October 2008 for professional services rendered in the total sum of about £22,000, together with interest. By a Defence and Counterclaim served in an amended form on 1 September 2009 Aardvark denied liability and counterclaimed damages in excess of £3.5M for professional negligence in connection with advice given in relation to copyright infringement and allied matters.

On 15 September 2009 the matter came before District Judge Graeme Smith at Manchester. He transferred the action to the Chancery Division of the High Court. In the course of other case management directions the District Judge ordered that the Claimant should file and serve a Reply and Defence to Counterclaim by no later than 4pm on Friday 23 October 2009. Unsurprisingly no sanction was attached to a failure to comply with that requirement. There was to be a further Case Management Conference on 19 January 2010.

On Tuesday 20 October 2009 at 12.45 hours Mr Oliver Hanrahan of Pannone’s solicitors, Messrs Barlow Lyde & Gilbert, Oxford office, emailed Aardvark asking for an extension of time of one week for service of the Reply and Defence to Counterclaim, confirming that this extension would have no impact on the remainder of the timetable. Aardvark was conducting the litigation on its own behalf, seemingly through two of its directors, Mr Andy Weston and Mr Chris Weston.

A response came from Mr Andy Weston at 12.46 on Wednesday 21 October 2009. He asked why an extension was necessary.

Mr Hanrahan was in a meeting all that day but he replied at 20.40. He explained that the reason for the request was simply that counsel had been heavily engaged in other matters.

Late in the afternoon of the next day, Thursday 22 October, Mr Hanrahan emailed Mr Andy Weston indicating that things had moved on a little and that an extension of time up to 1pm on the following Wednesday, i.e. 28 October, would be sufficient.

The judge describes what happened next:-

“11.

After further intervening emails, at shortly after noon on Friday, 23 October, Mr Andy Weston emailed Mr Hanrahan attaching in PDF form a form of consent order. Mr Hanrahan was told that if he was mindful to accept the order, Mr Weston would appreciate being provided with a signed copy of the order. The email continued:

“Finally, Oliver, we appreciate that prior delays were not as a result of your nor counsel’s involvement. However, we wish this matter to proceed swiftly to trial and to permit an even greater extension of time now would apply further pressure to the schedule ordered by District Judge Smith. As we are self representing we consider it not to be in our interests to further reduce the time to prepare for each of these pre-trial stages. In light of the above we trust you will consider our offer of an extension to be generous in the extreme.”

12.

The reference to that was to the attached consent order. That provided as follows:

“Upon reading the correspondence from the claimant and upon the parties confirming their consent at the foot of this order, it is ordered by consent:

(1)

The claimant to file and serve its reply and defence to counter-claim by no later than 1 pm on 26 October 2009.

(2)

If the claimant does not comply with paragraph 1 the claimant’s claim be struck out and the defendant have permission to enter judgment in full for its counterclaim.

(3)

All other timescales detailed within the order of District Judge Smith dated 30 September 2009 to remain unchanged.

(4)

Costs in the case.”

13.

Mr Hanrahan’s response to that, at shortly before 20 to 1 on the afternoon of Friday, 23 October, was contained in his email to Andy Weston:

“Thank you for your email. I am grateful to you for the short extension of time for service of the defence. As I see it there is no need for there to be any impact on the remainder of the timetable. The terms of the consent order are, on any view, draconian and way more than the court would have ordered. However, I do understand why you have drawn the order in this way and, given that we will be in a position to serve the reply and defence to counterclaim, I am happy to accept your terms. I am arranging for the order to be scanned and returned to you signed. You might please acknowledge receipt of this email.””

Mr Hanrahan’s observations were measured and accurate. This was the first request for an extension of time within which to serve the Reply and Defence to Counterclaim. The extension being offered was from 4pm on Friday until 1pm the following Monday, i.e. less than one working day. Mr Weston may well have felt that there had been earlier delays but the history of the litigation is quite unremarkable.

The consent order was in due course filed at court by Aardvark; it was approved by District Judge Smith, but not until 9 November 2009, thirteen days after the due date for service, 26 October.

Messrs Barlow Lyde & Gilbert did not seek or obtain the agreement of Aardvark to service by email. Such agreement is of course required under the CPR if service by email is to be without more effective. However the Defence and Counterclaim to which Pannone was responding had itself been communicated by email on 1 September 2009, followed up by a hard copy in the post. The fact that that was done pursuant to an order that the Defendant, Aardvark, should “file in court and leave upon the Claimant the amended Defence and Counterclaim” rather than an order that the Defendant should “serve” the statement of case does not to my mind undermine the judge’s conclusion that, given that Barlow Lyde & Gilbert were in Oxford and the Defendant in Nottingham, the parties must clearly have contemplated at 12.40 on Friday 23 October that service by email by 13.00 on the following Monday should be treated as valid service, provided that it was followed up by a hard copy in the post. That conclusion of the judge accords with common sense and modern practice and in any event the Appellant has been refused permission to appeal against it. I mention it now in order to put in context what transpired on the Monday morning.

Dealing first with service on Aardvark, this was initially effected by an email sent at 12.58. That sent a twenty-nine page version of the statement of case with an unsigned statement of truth. At 13.02 the statement of truth was sent by email, although that appeared to be the twenty-fifth page of the document. A hard copy of the twenty-five page version with completed statement of truth was sent by post and received on 28 October. There is in fact no difference in content between the twenty-five and twenty-nine page versions of the pleading. The formatting discrepancy is somewhat academic as the emails of 26 October were not in fact seen at Aardvark until 28 October. They were apparently diverted to a spam filter and only accessed by Mr Chris Weston on his return to the office on 28 October, on which day the hard copy arrived in the post.

So far as concerns filing at court, this was done by fax. A twenty-five page fax was sent at 12.59 but the transmission took two minutes and forty seconds. However it seems that this was probably an incomplete document because at 13.06 a second document was faxed, this time twenty-six pages in length. A twenty-five page version of the statement of case, complete with signed statement of truth was sent to the court by DX on 26 October and was received on 27 October. The inference that the first faxed version may have been incomplete is derived from the circumstance that a twenty-five page version with cover sheet would have produced a twenty-six page fax as sent at 13.06. The judge therefore inferred that the second fax contained the complete document, verified by a statement of truth, and that this was received a few minutes after 13.00. The judge made no finding as to how long the second fax transmission took – the evidence suggests that it again took a little over two and a half minutes.

Aardvark did not accept that the order as to filing and service of the Reply and Defence to Counterclaim had been complied with. At the CMC before District Judge Obodai on 19 January 2010 an order was made requiring Pannone to file and serve a witness statement in relation to the time of filing the statement of case at court. A further CMC was scheduled for 26 February 2010.

That CMC again came before District Judge Obodai. By now there was before the court not only a witness statement from Mr Hanrahan dated 26 January 2010 but also a further witness statement of 25 February from Mr Niall MacAuliffe, a telecommunications engineer at Messrs Barlow Lyde & Gilbert. This dealt with the point that the first fax to the court had been sent not at 12.56 as first thought but at 12.59. This issue has generated much suspicion and debate on the appeal but the judge ultimately found that Mr Hanrahan had misread the time on the fax transmission, which was in any event showing one hour later than the true time because the fax clock had not been set back one hour to reflect the change from BST to GMT that weekend. The judge found that Mr Hanrahan had not covered himself in glory in the manner in which he had instigated the issue of the timing of the filing, but that he had unwittingly rather than deliberately misled the court, and thus Aardvark. Aardvark has been refused permission to appeal against that finding. The District Judge was addressed at some length on the question whether filing and service had been effected in time. The District Judge dealt with the matter shortly. After hearing the argument she said this:-

“I have seen the witness statements. I have seen the documentation before the Court. I have a general case management power and I read it out to you, Mr Weston, so that you are aware of it:

“The court’s general powers of management

Except where these Rules provide otherwise, the court will –

(a)

extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired).”

I am going to deal with this in a pragmatic way I think, given so much time has been wasted on this issue. The documentation has been filed says 12.59 and so on. It was received late, I am going to extend the time under the order of 9 November 2009. We need to move this matter on. Let’s get to the nub of it, let’s get to trial, and let’s deal with the issues that you have raised in your counterclaim against Pannones.”

It should be noted that Pannone had not applied for relief from the sanction attached to the order, taking the view that there was no necessity so to do. However this court has held in Keen Phillips v Field [2006] EWCA Civ 1524 [2007] 1 WLR 686 and in Marcan Shipping (London) Limited v Kefalas [2007] EWCA Civ 463 that the court’s power to extend time under Rule 3.1(2)(a) and to act on its own initiative under Rule 3.3(1) are not cut down by Rule 3.8 so that the District Judge had jurisdiction to make the order extending time, subject to the question whether the issue is affected by the order having been by consent.

Aardvark appealed with leave of Richards VC. The appeal came before His Honour Judge David Hodge QC, sitting as a judge of the Chancery Division on 19 August 2010. In an impressively full and detailed extempore judgment the judge dismissed the appeal. As I have already indicated above, he concluded that the parties must be taken to have contemplated that service by email should be treated as valid, provided it was followed up by postal service thereafter of a hard copy. The fact that the first emailed version lacked the signed statement of truth was a mere failure of procedure which, pursuant to CPR 3.10, did not invalidate service unless the court so ordered. As to filing at court he concluded:-

“44 . . . it is now clear that the fax transmission was not complete until after one o’clock: but it was initiated before the one o’clock deadline, and was completed shortly thereafter. It was then followed up by a complete version which had undoubtedly been received within ten minutes of the one o’clock deadline: and the court received the hard copy the following day, again duly verified by a statement of truth.”

The judge reviewed the authorities and directed himself by reference to the observations of Neuberger J, as he then was, in Ropac Limited v Inntrepreneur Pub Company Limited (2001) CP Rep 31 that the court should be slow, save in unusual circumstances, to depart from what the parties have agreed. The judge also observed that as District Judge Obodai had been giving relief from sanctions, she should also have had regard to the checklist in CPR 3.9 which provides:-

“(1)

On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

(a)

the interests of the administration of justice;

(b)

whether the application for relief has been made promptly;

(c)

whether the failure to comply was intentional;

(d)

whether there is a good explanation for the failure;

(e)

the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;

(f)

whether the failure to comply was caused by the party or his legal representative;

(g)

whether the trial date or the likely trial date can still be met if relief is granted;

(h)

the effect which the failure to comply had on each party; and

(i)

the effect which the granting of relief would have on each party.”

The judge’s conclusions are contained in the following passages of his judgment:-

“47.

. . . the court must season justice with mercy. Mr Hanrahan had attempted to comply. Admittedly he has not provided any explanation as to why the email was only sent two minutes before the deadline, and why the fax transmission was only started one minute before the deadline; but, nevertheless, I am satisfied that he was genuinely trying to comply with the consent order; and indeed, in view of the draconian nature of the consent order, which was recognised by him as such, he had every reason to seek to comply. . . .

48.

It seems to me here, however, that, whilst it is clear that the filing with the court was just outside the scope of the terms of the agreed consent order, nevertheless the court should exercise its power, as District Judge Obodai did, to grant relief from sanctions. The interests of the administration of justice do dictate that consent orders should be given full force and effect by the court. But, as I have indicated, justice must, in an appropriate case, be seasoned with mercy: and where someone has genuinely taken steps to comply within the agreed time limit, but has just failed to do so, with no prejudice to the other party, it does seem to me that the interests of the administration of justice dictate that the underlying and substantive litigation should be fought out on its merits rather than allowing it to go by default.

49.

No application for relief here was made by the claimant because it considered, until the service of Mr MacAuliffe’s evidence, that relief from sanctions was not required. District Judge Obodai, of the court’s own initiative, granted relief from sanctions at the hearing on 26 February. Had the matter proceeded without the present appeal, there would have been no disruption to any material extent to the timetable for trial. Any disruption to the trial timetable has been as a result of the defendant’s actions in mounting this appeal. I have no doubt that the failure to comply was inadvertent and unintentional, save to the extent that Mr Hanrahan only sent the email two minutes before the deadline, and only started the fax transmission one minute before. Nevertheless, he did not intend to breach the terms of the consent order. There is no reason for him to have done so.

50.

Whilst there is no explanation for his failure to start the fax transmission until one minute before one, nevertheless one has to bear in mind that he was operating within a timetable which he had rightly described as “draconian”, and I can understand why he should have had to wait until almost literally the last minute. I accept that the claimant had been in default with the earlier provision for service: but it was only in default to the extent of one working day, and, in my judgment, that prior default, which had been remedied by the terms of the consent order, albeit in draconian terms, should not preclude the grant of relief from sanctions. The failure to comply was clearly caused by Mr Hanrahan, and not by his client. Had the point not been raised by the defendant, there would have been no outcome upon the likely trial date: and had matters been left as they were after the case management conference on the 26 February, there would have been no material delay to the trial timetable.

51.

I must consider the effect which the failure to comply, and the granting of relief, will have on each party. So far as the claimant is concerned, if relief is not granted it will be deprived of a trial on the merits. So far as the defendant is concerned, it will obtain a windfall for which there is no warrant in terms of any corresponding prejudice that it has suffered to weigh against the undoubted detriment to the claimant. If relief is granted, then the case will proceed to trial on the merits rather than pass in default.

52.

In furtherance of the overriding objective, it seems to me that everything points one way, which is the result at which District Judge Obodai herself arrived. In my judgment, she took a pragmatic view which was entirely correct: and I therefore dismiss this appeal.”

Mr Andy Weston has conducted the appeal to this court. He displayed an impressive mastery of the authorities which bear on the question. After at first seeming to suggest that the contractual nature of the order made by consent deprived the court of any power to grant relief in the event of a failure to comply, his argument developed into one which accepted that the court retained a power to grant relief but asserted that the evidence here did not justify the interference with the parties’ autonomy to prescribe the consequences of non-compliance, however trivial, with a stipulation as to time. Essentially his submission was that the judge failed to address the need to identify unusual circumstances which would justify the court in granting relief or that, insofar as the judge did address the point, the material before the court was not such as any reasonable decision-maker could have regarded as sufficiently unusual.

We did not find it necessary to call on Miss Anneliese Day for the Respondent but we had the benefit of her very helpful skeleton argument in support of the judge’s approach and in support of her Respondent’s Notice which suggested that the decision of the judge could, if necessary, be upheld on other grounds.

It was pointed out by Lord Denning MR in Siebe Gorman v Pneupac 1982 1 WLR 185 that there is an ambiguity in expressing an order to be made “by consent”. As he there said at page 189:-

“There are two meanings to the words “by consent”. That was observed by Lord Greene MR in Chandless-Chandless v Nicholson [1942] 2 KB 321, 324. One meaning is this: the words “by consent” may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words “by consent” may mean “the parties hereto not objecting”. In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without objection?”

The other members of the court, Eveleigh and Templeman LJJ, agreed, Templeman LJ adding at page 192FH:-

“By the summons dated December 18, 1980, the defendants sought an order that the plaintiffs give further discovery within 10 days after the date of the order and a provision in the order that in default of compliance the plaintiffs’ claim against the defendants be struck out. The service of this summons was not an offer and was not intended to create or result in a contractual relationship. The summons constituted a demand and a threat. The threat could only be made effective subject to the power of the court under R.S.C., Ord. 3, r. 5, and under its inherent jurisdiction at any one or more times to extend the plaintiff’s time for compliance. If the plaintiffs had written back to the defendants announcing that they would consent to the order sought by the defendants, the announcement would not and could not have constituted acceptance of a non-existent offer or be capable of creating a contractual relationship. The announcement would have been no more than the intimation of an intention on the part of the plaintiffs not to argue against the grant of the relief sought by the defendants but to submit to an order in the terms of the summons.”

These observations were made in the context of the old Rules of the Supreme Court. It may be, as I shall show, that the distinction there being drawn is now of no significance so far as concerns the jurisdiction of the court to grant relief from the “agreed” consequences of non-compliance with an order but it remains in my view of importance in the context of the court’s exercise of its discretionary power. There is a world of difference between a case management decision made at the instance of one party to which the other party makes no objection, such as occurred in Siebe Gorman and a genuine settlement of a substantive dispute as to the parties’ rights, such as was under consideration by this court in Weston v Dayman 2006 EWCA Civ 1165. There a receivership was discharged pursuant to an overall settlement of disputes which dealt with all aspects of the receivership including the utilisation of monies held in the various receivership accounts, the costs of the receiver, a limited indemnity in respect of a particular possible liability of the Receiver and, critically, a release of the Receiver from all liability for any failure properly to manage the estate of the receivership during the period of the receivership. The settlement was enshrined in an order of the court made by consent. The procedure differed therefore from that adopted when proceedings are compromised by a consent order made in Tomlin form, i.e. an order which records the terms of settlement in a schedule to the order but where the terms themselves are not ordered by the court and are not enforceable as a judgment without a further order. A court has no general power to vary the terms of an agreement set out in the schedule to a Tomlin order save insofar as the circumstances give rise to a power so to do as a matter of the general law of contract – see per Ramsey J in Community Care North East v Durham County Council 2010 EWHC, 4 All ER 733. In Weston v Dayman the court was invited to vary the consent order so as to permit the bringing of an action against the Receiver for breach of duty for failing to take proper care of a motor yacht which formed part of the estate of the receivership. Arden LJ, with whom the other members of the court agreed, said that the court “must be very careful in exercising a discretion to vary the terms of an order which represents a contract between the parties” – see at paragraph 24. Assuming without deciding that the court had such a power, the court declined to exercise it, noting that “a bargain freely made should be upheld” – see per Arden LJ at paragraph 25. The applicant Mr Weston had himself obtained benefits under the consent order and it would not be right to exercise any discretion to vary it. The court was there being invited to interfere with a concluded settlement of substantive disputes. Assuming that there is a power so to do, where the settlement is embodied in an order of the court, it can rarely be appropriate for the court to intervene further than to the extent to which the contract can, by its own terms or pursuant to general contractual principles, be modified or discharged in the light of changed circumstances.

In the present case we are concerned only with the power of the court to extend the time for compliance with a court order and the power of the court to grant relief from a sanction prescribed by a court order as the consequence of a failure to comply therewith within a specified time. For my part I have no doubt that the court enjoys such powers, even where the order is expressed to have been made by consent. CPR 3.1(2)(a) provides:-

“Except where these Rules provide otherwise, the court may –

(a)

extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired).”

This Rule expressly grants the power to extend time, with no derogation in case of an order made “by consent”. CPR 3.8 provides:-

“(1)

Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.

(Rule 3.9 sets out the circumstances which the court may consider on an application to grant relief from a sanction)

(2)

Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs.

(3)

Where a rule, practice direction or court order –

(a)

requires a party to do something within a specified time, and

(b)

specifies the consequence of failure to comply,

the time for doing the act in question may not be extended by agreement between the parties.”

I particularly note that Rule 3.8(3) again contains no derogation so far as concerns an order made by consent. It would no doubt be rare for the court to decline to give effect to the parties’ subsequent agreement to extend the time within which some step was required to be taken by the terms of their earlier consent order, and thus to relieve from the sanction specified, but that the court reserves to itself the power so to do is entirely consistent with the court’s general powers of management. It is also consistent with that aspect of the overriding objective which requires the court to allot to a case an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases. Thus an agreed extension of time by parties who have already agreed to an order imposing sanctions for failure to comply with the existing timetable which will lead, for example, to the vacation of an already oft deferred trial date might not be endorsed by the court in circumstances where the parties have already had allotted to them more than a fair share of the court’s resources. It must however I think equally follow that it is inherent in rule 3.8(1) that the power to relieve from sanctions is available in respect of all orders of the court, including those expressed to be made by consent. No exception is made and an implied exception would be inconsistent with the court’s general powers of management as embodied in CPR Part 3, part of a “new procedural code” which CPR 1.1(1) tells us has the overriding objective of enabling the court to deal with cases justly.

Accordingly I respectfully agree with the conclusion which Neuberger J reached “with some hesitation” in Ropac v Inntrepreneur. In that case, decided in June 2000, Neuberger J had to decide whether the approach under the CPR is more flexible than that which obtained under the RSC. The background however was not a case management order. A tenant of a public house issued proceedings against his landlord claiming damages for breach of the non-competition provisions of the Treaty of Rome. The landlord defended and counterclaimed for possession and arrears of rent. Following determination of a related test case the proceedings were compromised by a consent order requiring the tenant to pay the balance of the outstanding rent on or before 9 December, time being of the essence, failing which the landlord would be entitled to possession. The tenant paid half the sum by cheque delivered on 8 December and cleared on 10 December but did not provide a cheque for the balance until 18 December. The landlord obtained a possession order. Amongst other applications, the tenant applied for an extension of time in compliance with the consent order. Neuberger J held that the court had power to extend time. After referring to the overriding objective he said this:-

“There is thus an overriding element of which amounts virtually to a public interest factor, which governs the whole of the CPR, and which was not present in the RSC. In this connection, the duty to manage cases, which clearly incorporates Part 3, the Case Management Powers, is governed by Rule 1.4, “The court’s Duty to Manage Cases”. Rule 1.4(1) provides:

“The Court must further the overriding objective by actively managing cases.

To my mind, the CPR therefore give the Court rather more wide ranging more flexible powers that the RSC. In my judgment, those powers are to be exercised not merely to do justice between the parties, but in the wide public interest. Further, the objective to deal with a case “justly” must, as I see it, sometimes (albeit rarely) require the Court to override an agreement made between the parties in the course of, and in connection with, the litigation. I consider that that means that the Court has greater power to interfere than before. Having said that, I should add this. Where the parties have agreed in clear terms on a certain course, then, while that does not take away its power to extend time, the Court should, when considering an application to extend time, place very great weight on what the parties have agreed and should be slow, save in unusual circumstances, to depart from what the parties have agreed.”

Neuberger J did in fact not extend time, primarily because it was accepted by the landlord that the tenant was entitled to have relief from forfeiture on terms that he paid all the rent due and owing. Of course the relationship of landlord and tenant brings into play special considerations, but I would for my part point out that the consent order there under consideration represented the compromise of a substantive dispute, not an agreed modus vivendi in relation to a case management decision in preparation for trial.

In Ferrotex v Banque Francaise de L’Orient 2001 EWCA Civ 1387 decided in August 2001 the Court of Appeal comprised of Peter Gibson and Tuckey LJJ did not have to decide if the approach of Neuberger J was right. An order was made by consent for security to be given by an appellant for the respondent’s costs of an appeal to the Court of Appeal. The order was agreed on 2 July and made by the court on 3 July, requiring security to be provided by 10 July, failing which the appeal was to stand dismissed. The appeal had for several months been fixed for an estimate of two to three days for the week beginning 23 July. So as Tuckey LJ observed “the time by which security was to be provided was obviously important because the hearing of the appeal was so imminent”. There was an argument in that case as to whether the consent order was a real contract or simply a procedural accommodation which amounted to no more than an agreement that an agreed draft order would be put before the court for it to decide whether to make the order. However, as Tuckey LJ also observed the resolution of that issue was not decisive as it was also common ground that, even where there is a real contract, the court’s jurisdiction to extend time is not ousted unless the parties have expressly or impliedly agreed that this should be the case. As foreshadowed above, I accept that the court’s jurisdiction in these circumstances is not dependent upon the characterisation of the consent order as not amounting to “a real contract”. Although it is unnecessary to decide the point in this case, I have some difficulty with the concept of an agreement embodied in an order of the court which either expressly or impliedly ousts the jurisdiction of the court to extend time for compliance. As to an express ouster, I doubt if the court would, save possibly in very limited circumstances, be prepared to make an order in that form, and it would certainly rarely if ever be appropriate in relation to a case management order, since the court would thereby be abandoning or derogating from its case management powers and its duty to manage cases. As to implication, as Tuckey LJ observed in Ferrotex at paragraph 22:-

“One can well imagine circumstances which could not be characterised as being wholly exceptional or unusual (for example a bank strike) where a party in the position of the appellants was unable through no fault of his own to comply with an order of this kind. Unless the parties had clearly spelt out their intention that in such circumstances the court could not be invited to exercise its undoubted jurisdiction to extend time, I do not think any such term should be implied.”

This last observation of Tuckey LJ leads me to the conclusion that in a case such as the present the circumstances in which the court may be prepared to extend time and thus to grant relief need not be characterised as unusual. The presence of “unusual circumstances” is plainly not a prerequisite of the jurisdiction to extend time or to grant relief, which is expressed in the CPR in general terms. In Ropac Neuberger J was, if I may respectfully so put it, feeling his way in the light of the newly introduced procedural code, and he was certainly not, I think, intending to formulate a rule as to the circumstances in which an extension of time might be granted in the face of a consent order. I think he meant no more than to emphasise that appropriate weight should be given to the parties’ agreement.

In my view the weight to be given to the consideration that an order is agreed will vary according to the nature of the order and thus the agreement. Where the agreement is the compromise of a substantive dispute or the settlement of proceedings, that factor will have very great and perhaps ordinarily decisive weight, as it did in Weston v Dayman, which was not in any event concerned with an application to extend time. Where however the agreement is no more than a procedural accommodation in relation to case management, the weight to be accorded to the fact of the parties’ agreement as to the consequences of non-compliance whilst still real and substantial will nonetheless ordinarily be correspondingly less, and rarely decisive. Everything must depend on the circumstances, and CPR 3.9(1) prescribes that on an application for relief from a sanction for a failure to comply with a court order the court will consider all the circumstances, including those enumerated in the following sub-paragraphs. Beyond noting that where an order is made by consent, that is one of the circumstances which the court will take into account, it is not I think necessary to impose any further gloss on the Rules, which are already adequately drafted so as to ensure that all proper considerations must be taken into account.

My conclusion is I think entirely consistent with the approach taken by Pill LJ as a single judge of the Court of Appeal in Confetti Records v Warner Music UK Limited 2003 EWCA Civ 1748. We were also referred to a recent decision of Ramsey J, Fung Oi Chiu & Others v Waitrose & Others [2011] EWHC 1356, in which he reviewed the cases to which I have referred above and concluded:-

“24.

The overall effect of those cases is that the strict approach of the position before the introduction of the CPR does not apply and the court does have the ability to extend time or grant relief from sanctions in relation to an agreed order made in a consent order. However the court will be slow to do so and will generally hold the parties to the terms of the consent order but that there will be unusual cases where it will be just to extend time or grant relief from sanctions. In all cases the fact that there is a consent order will be a factor upon which the court should place very great weight in exercising the discretion given under the CPR or under any liberty to apply in the consent order.”

Later in his judgment at paragraph 34, Ramsey J said this:-

“34.

Are these circumstances sufficiently unusual for the court to take the equally unusual course of granting relief from sanctions despite the fact that the agreed order was contained in a consent order and represented part of the agreement by which the trial date was vacated? I have come to the conclusion that the form of the agreed order, the lack of compliance with CPR 2.9 and the fact that unintentionally the period for compliance expired on Good Friday mean that this case is where, if the other factors in CPR 3.9(1) show that it would otherwise be just to grant relief, the court should not refuse relief despite the existence of the consent order. In this case, whilst the agreement between the parties has great importance and the court should clearly be slow to grant relief where there is a consent order given the particular unusual circumstances of this case I would be prepared to exercise my discretion and grant relief.”

The judge carefully considered and weighed all of the circumstances, including the respect that should be given to the agreement of the parties and all of the particular circumstances set out in the checklist in CPR 3.9. Given that the judge reached a conclusion which was well within the ambit of reasonable decision-making, it would be inappropriate to revisit the exercise of his discretion. However I would add that in my view he plainly came to the correct decision. I would have been astonished had either he or the District Judge come to any different conclusion. In view of the prize for success, I can understand why these two appeals have been pursued with such assiduity by a party who is not legally represented. In truth however, once it is accepted that the court has the power to extend time, there could only on these facts be one just outcome.

I would dismiss this appeal.

I agree that the appeal should be dismissed for the reasons given by Tomlinson LJ. Once the position was reached that the attack in the appeal was not on the power of the court to extend the time laid down by a consent order, but on whether the circumstances had justified the court in exercising that power, it became clear that the appeal was bound to fail and that the grant of permission to appeal had been over-generous.

Nevertheless the appeal does provide an opportunity for this court to hold that there is such a power, and it is appropriate that we should take that opportunity. Nor is that power limited in any prescriptive way by reference to the existence of “unusual circumstances”. The fact that the order was made by agreement is one of the circumstances of the case to which the court is to have regard under rule 3.9, and it may be an important factor, but it is not inherently decisive, so as to render it unnecessary and irrelevant to examine the other relevant circumstances.

One striking and perhaps unusual feature of this case, on its facts, is that it was the unrepresented litigant who put forward to the solicitors for the other party the terms of an order in draconian terms, failure to comply with which to the letter has given rise to the problem. Mr Weston was evidently familiar with rules and practices as regards the procedure to be followed in civil litigation, and a great deal more so than most unrepresented parties. If one were to suppose, for the purposes of comparison, that a consent order in similar terms had been proposed by a represented party to a litigant in person who was seeking an extension of time, there could be only one possible answer to the question whether the court would have the power to grant a further extension of time if the time allowed by the consent order had not proved to be sufficient. The fact that the order was made by agreement would be a relevant factor, but it could not prevent the court from considering whether to allow the party in default a further period of time for compliance.

With hindsight it was no doubt foolhardy of the claimant’s solicitors to agree to an order in such drastic terms, and not to seek agreement in terms to service by email, and also not to start the process of filing and serving the document some ten minutes or more earlier. But on the merits of the case I agree with Tomlinson LJ that the case for extending time by a matter of hours, as the District Judge did, was overwhelming.

I agree with both judgments.