Elliottt v Stobart Group Ltd & Ors

This is an appeal by Peter Elliott against an Order made on 10 January 2014 by His Honour Judge Platts sitting as a Judge of the High Court in Manchester. By that Order Judge Platts dismissed Mr Elliott’s application for an extension of time for service of an expert psychiatric report and, in consequence, dismissed his claim for damages pursuant to a cross-undertaking in damages given by the Claimants, Respondents to this appeal, in support of an injunction obtained by them on 15 June 2012 restraining Mr Elliott from defaming them. That brought to an end an enquiry as to what loss, if any, was caused to Mr Elliott by that injunction and what compensation, if any, Mr Elliott should be entitled to recover from the Claimants in consequence thereof.

Stobart Group Limited has interests in the property development, aviation and civil engineering sectors. Eddie Stobart Limited needs no introduction as a national distribution and warehousing company. Stobart Group Limited has a 49% shareholding in Eddie Stobart Limited. Eddie Stobart Limited owns WA Developments International Limited, a holding company which has property interests and has previously had airport interests. Mr Tinkler is Chief Executive of Stobart Group Limited. Mr Stobart is Chief Executive of Eddie Stobart Limited. I shall refer to all five Claimants/Respondents compendiously as “the Stobart interests.”

Mr Elliott is an experienced helicopter pilot who was at one time engaged by WA Developments International Limited as a self-employed consultant providing aviation services. That relationship came to an end in March 2007 in acrimonious circumstances. Mr Elliott alleged that WA Developments International Limited were carrying out unlawful operations.

Mr Elliott later alleged that Mr Tinkler and Mr Stobart had engaged in criminally fraudulent activity in relation to the sale of Carlisle Airport in May 2009 by WA Developments International Limited to a public company at what was said to be an over-valuation.

On 15 June 2012 His Honour Judge Pelling QC granted the Stobart interests a without notice interim injunction preventing Mr Elliott from publishing certain defamatory statements about Mr Tinkler and Mr Stobart in relation to the alleged fraud in respect of Carlisle Airport. The Stobart interests gave the usual undertaking in damages to be found at paragraph 1 of Schedule 2 to the Order in the following terms:-

“If the Court later finds that this Order has caused loss to the Defendant, and decides that the Defendant should be compensated for that loss, the Claimants will comply with any Order the Court may make.”

On 22 June 2012, which was the return date, Mr Elliott gave an undertaking in respect of one of the defamatory statements, and an injunction was made against him in respect of the others.

On 16 January 2013 Judge Pelling granted the Stobart interests permission to discontinue the injunction proceedings.

It is said by the Stobart interests that they discontinued the injunction proceedings because the effect of a ruling of the Court of Appeal in October 2012 in other proceedings was to reinstate an earlier injunction granted against Mr Elliott which had been in place until set aside in March 2012. The injunction granted by Judge Pelling in June 2012 had therefore become unnecessary. It is said by Mr Elliott that the injunction of 15 June 2012 was improperly obtained by the Stobart interests. Neither of these points was explored before us, we have not seen the relevant material, and I say nothing about them. I assume for the purposes of this appeal that Mr Elliott has an arguable case that the injunction of 15 June 2012 was improperly obtained.

Mr Elliott claims that the injunction caused him to suffer psychiatric harm and loss. He claims that the injunction either caused a psychiatric disorder or exacerbated a pre-existing psychiatric disorder. We have been shown some limited, provisional and untested evidence on this point. I assume for the purposes of this appeal that Mr Elliott has an arguable case that the injunction exacerbated a pre-existing psychiatric disorder.

I also assume for the purposes of this appeal that at all material times Mr Elliott has suffered from Depressive Adjustment Disorder but that at all material times he has both had capacity to represent himself in the proceedings and, where necessary, to give instructions to other professionals. Both assumptions are based upon the evidence upon which Mr Elliott relies.

In his Order of 16 January 2013 Judge Pelling directed:-

“There will be an enquiry as to what loss (if any) was caused to the Defendant by the Injunction granted on the application of the Claimants by Order made by HH Judge Pelling QC on 15^th June 2012 (“the Injunction Order”), and what compensation (if any) the Defendant is entitled to recover pursuant to the cross-undertaking given to the Court by the and each (sic) of the Claimants and contained in Paragraph 1 of Schedule 2 of the Injunction Order.”

As part of his Order, Judge Pelling required Mr Elliott to serve by 18 March 2013, with a view to further directions being given later in March, a witness statement setting out (i) each head of claim he sought to maintain and (ii) his evidence in support of that claim. On 18 March Mr Elliott filed a witness statement. On 21 March at a hearing at which Mr Elliott was present, Judge Pelling gave directions for the enquiry. His order recorded that Mr Elliott did not wish to serve further factual evidence. The order gave each party liberty to rely on one expert in the area of clinical psychology and/or psychiatry. Mr Elliott was ordered to file and serve an expert report by 3 May and Stobart was given liberty to serve one in reply by 24 May. There was to be a case management conference on the first available date after 31 May.

On 29 April 2013 Mr Elliott sought a 14 day extension to the above timetable. The reasons stated were:-

“I am very unwell at the moment and on a lot of Valium medication again for deep depression – with a huge amount of problems on my plate… and I simply cannot juggle every ball with only a maximum of three hours capacity in any one day. I am bedridden at least four out of seven days since the last hearing and am really struggling to keep all the balls in the air…”

On 2 May 2013 the Stobart interests agreed to the extension, subject to the approval of the court.

By email dated 3 May 2013 Mr Elliott sought a 30 day extension to the new timetable. The reasons stated were:-

“…In light of recent communications in this matter I now realise upon rereading the Order that a 14 day extension would not actually suffice. It was my mistake but the reality is I had not read the Order properly and as you know I have a huge amount on my plate at the moment… and I simply cannot keep all the plates spinning all the time…

After the Court Hearing of the judgment as you know I had a major problem with getting a Psychiatric Report issue. However I came up with a solution as described below.

For the record however – because of your client’s actions I am left with no cash money to pay for an expert…

I saw my psychiatrist nurse shortly after the Hearing and they offered that Dr Prosser would despite the fact they had volunteered the fact as the day to day carers of my mental health they did not feel it wholly appropriate to be an “Independent Expert”… The first appointment I was given is for 25th May 2013 and Dr Prosser is an exceptionally busy man so that is what I am stuck with. That leaves an issue with regards to timings – you could either agree to move everything by say 30 days on the Order – to allow me the chance to Dr Prosser to be able to provide the Report in a timely manner after assessment and which I have no choice in asking you to reasonably agree to and move everything by 30 days…”

By email of the same date the Stobart interests replied, seeking confirmation whether the extension was sought for all of the outstanding directions, including disclosure and inspection.

So far as concerned the extension of time for service of an expert report, Mr Elliott replied in an email of the same date:-

“As per my email earlier I have impossible difficulties as explained to comply with the Order number 6 which is physically not possible for me to today and has been outside my control completely. What you do about that is up to you. I in this email Undertake to the Court that it shall be provided within seven days of the appointment have with Dr Prosser on 25^th May 2013.”

It was paragraph 6 of the Order of 21 March 2013 which directed Mr Elliott to file and serve his expert psychiatric report by 3 May 2013.

By email dated 18 June 2013 the Stobart interests notified Mr Elliott that they had requested the matter to be listed for a Case Management Conference in accordance with paragraph 8 of the Order of Judge Pelling of 21 March 2013.

By email dated 21 June 2013 Mr Elliott replied, stating:-

“I have been too ill (both mentally and physically – Psychiatrist letter available to the Court if required – I am under Doctors Orders not to go anywhere near a Court until at least September…) to deal with this matter for many weeks… The only reason we are having terrible problems getting a Psychiatric report is that it turns out my NHS Psychiatrist cannot be a Witness to the Court unless ordered to be so by the Court – which he or I would not object to at all. An eminent Professor is currently being sought to assist me pro-bono by my NHS Mental Health Team.

…

You are invited… so the Court by this document is invited – to adjourn the matter generally until a Psychiatric Report confirms I am fit to attend a CMC which shall not be until after September. I repeat a Psychiatric letter can be provided to the Court to prove I am not fit to attend any Court until at least September.”

The Stobart interests requested a copy of the psychiatrist’s letter to which reference had been made.

On 2 July 2013 Mr Elliott further advised that “he will not be attending any Court Hearing until September under psychiatrist advice… due to massive physical headaches and trauma problems.”

On 3 July 2013 Mr Elliott wrote to the Court undertaking to provide a medical note stating that he was not fit to attend and inviting an adjournment of the CMC fixed for 11 July 2013.

A further email to the Court followed on 5 July 2013. Mr Elliott asserted that he was not fit to attend court. Attached to that email was a letter from Mr Elliott’s mental health care co-ordinator, Mr Andy Creevy stating:-

“I understand Mr Elliott has a Court Hearing on 8^th July 2013 and has requested that the matter be adjourned until September 2013. I would support Mr Elliott in that request. Mr Elliott is not fit to attend Court especially without representation.

We have recently intervened in a Court process on behalf of Mr Elliott because we are very concerned for his mental and physical health even where he has representation. That Court has adjourned that matter until October 2013.

Because of all the legal stresses Mr Elliott has been under for many years, he struggles to concentrate, feeling exhausted after two hours of trying to concentrate. He is currently having problems with headaches which are currently being diagnosed through various medical tests. He feels “continually bullied” and persecuted.

Dr Prosser has recently confirmed the following “my concern is that further stress of Court Hearings now would leave (sic) to a significant mental health deterioration in him, he would not be able to give instructions and conduct proceedings and it may increase his suicide risk.”

The CMC proceeded on 11 July 2013. Mr Elliott did not attend and was not represented. Judge Pelling gave certain directions, enshrined in his order of 11 July 2013. The preamble to the Order recited that the judge had read the email dated 5 July 2013 from Mr Elliott to the Court and the letter to the Court dated 5 July 2013 from Andy Creevy, Care Co-ordinator and Acting Team Leader, Eden CMHT. Judge Pelling had also had the advantage of having had Mr Elliott appear before him in person on 21 and 22 March 2013 in order to argue various applications in other litigation between himself and the Stobart interests. Paragraphs 1 and 2 of the Order made on 11 July 2013 provided:-

“1.

The Defendant must file and serve by no later than 4pm 16 September 2013 a report from an expert psychiatrist containing the evidence upon which he relies in order to establish his claim that he suffers from a psychiatric condition or disorder and that such psychiatric condition or disorder was either caused or exacerbated or otherwise adversely affected by the Injunction Order dated 15 June 2012.

2.

The Defendant must by no later than 4pm 16 September 2013 provide to the Claimants’ solicitors a signed authority to his general practitioner which authorises his GP to release his medical records directly and only to Dr Gareth Vincenti FRC Psych., Consultant Psychiatrist, being the Claimants’ nominated expert witness.”

Importantly, Judge Pelling’s Order of 11 July 2013 also included the following:-

“6.

The Defendant has permission to apply to vary or discharge this Order, provided that such application must be made not later than ten days after service on him of the sealed Order.

7.

The Defendant has permission to make any such application in writing provided that he serves his application and any evidence and/or submissions in support on the Claimants’ solicitors and files evidence of such service with the Court.

8.

In the event that Defendant is informed of the date of the trial of the proceedings which are referred to in the third paragraph of the letter to the Court from Andy Creevy dated 5 July 2013 mentioned above (“the Trial”), after the expiry of the time limit in paragraph 6 of this Order, then the Defendant further has permission to apply to vary any provision in this Order, provided that such Application must be made not more than seven days after the Defendant receives such notice of such trial date. Any such application must comply with the requirements of Paragraph 7 above and must include evidence as to when the Defendant was first informed of the date of the Trial

…

10.

If the Defendant does not file and serve the expert report referred to in paragraph 1 of this Order by 4pm on 16 September 2013 and does not make an application to vary or to set aside paragraph 1 of this Order that complies with paragraph 6 of this Order, then the Claimants will have permission to apply to strike out those parts of the Defendant’s claim which allege that any psychiatric condition or disorder suffered by the Defendant was either caused or exacerbated or otherwise adversely affected by the Injunction Order dated 15 June 2012.

11.

These proceedings are to be re-listed for a further CMC before HHJ Pelling QC at 9.30am 14 November 2013.”

No application was made by Mr Elliott to vary or discharge paragraph 1 of the Order.

Mr Elliott provided no expert report by 16 September, nor did he provide to the Claimants’ solicitors a signed authority to his GP authorising the release of his medical records to Dr Vincenti.

Late on 13 November 2013, the day before the further CMC listed to take place before Judge Pelling, Mr Elliott served a psychiatric report from Professor Turkington based upon an examination carried out on 11 November. That report was written without consideration of medical notes which, Professor Turkington observed, he needed to see in order to confirm his opinion. It is apparent from the report that Professor Turkington had written a previous psychiatric report on 22 May 2012.

The CMC duly took place before Judge Pelling on 14 November 2013. The Stobart interests were represented by Counsel and Mr Elliott appeared in person. It became clear that the Stobart interests would oppose any application by Mr Elliott for an extension of time within which to serve the psychiatric report. Judge Pelling ordered:-

“1.

By no later than 4pm on 29^th November 2013:

(1)

The Defendant is to issue and serve any application, and any evidence in support of the application, for an extension of time to comply with paragraphs 1 and 2 of the order sealed on 18^th July 2013 and/or for variation of the terms of paragraphs 2 and/or 3 of the order.

(2)

The Claimants are to issue and serve any applications to strike out the whole or any parts of the Defendant’s claim for damages pursuant to the Claimants’ undertaking contained in the Injunction Order dated 15^th June 2012 (“the Defendant’s claim”) together with any evidence in support.

2.

(1)

In default of compliance by the Defendant with paragraph 1 (1) of this Order, the Defendant shall be debarred from applying for an extension of time in which to comply with paragraph 1 and/or paragraph 2 of the order sealed on the 18^th July 2013.

(2)

In default of compliance by the Claimants with paragraph 1 (2) of this Order, the Claimants shall be debarred from applying to strike out the Defendant’s claim, or any part of it.”

On 29 November 2013 there were issued two applications:-

Mr Elliott’s witness statement in support of his application included an apology for not dealing with the matter earlier. Mr Elliott explained:-

“As the Court knows I have been unwell for a long period now. My Capacity fluctuates. Exhibit PE1 to PE3 confirm so. Small portions of no relevance to this matter and highly personal to me and of no concern to the evil Trevor Howarth and Andrew Tinkler have been redacted. I needed upon Doctors orders to have the summer of 2013 off to try to get rid of the massive headaches I was suffering and recover a bit and gain some capacity. I apologise sincerely for not dealing with this matter earlier but when one is raped and still in the gutter in pain sometimes one cannot cope with dealing with anything involving Courts. In July after 5 years of evil oppression of me by the Claimants, three violent attacks upon me and facing two completely mendacious vexatious Cumbria Police (friends of Andrew Tinkler and William Stobart even having free use of the Stobart helicopter and not prosecuting them for obvious Fraud crimes) prosecutions against me - both now dismissed by the Courts as an Abuse of Process by CPS and Cumbria Police and Not Guilty. Lets not forget the GBH matter was when Cumbria Police totally ignored and also his the evidence that I was a victim of Stuart Challoner - not an attacker at all. Stuart Challoner (and others) violently attacked me and is a convicted (18 times) criminal associate of Andrew Tinkler and attacked me in the name of Andrew Tinkler he even referred to William Stobart as “Willy” on oath - he is that close obviously. I simply could not cope back in July. People are sometimes broken by the system and in July I was”

Mr Elliott also said this:-

“It is the Claimants whom through vicious litigation of me since 21^st November 2008 have put me in a financial situation where I could not afford to get an Expert Opinion. Furthermore and in any event I simply could not have psychologically attended to him – when I saw him two weeks ago it traumatised me deeply yet again and back in July I simply could not have taken that. I have been raped – I feel violated every hour of every day by these disgusting evil Claimants against me whom are making me go through this further rape of my mind. In November I finally managed to raise the funds against an asset so as to be able to have the finance to see Professor Turkington. His Interim Report (PE4) has now been submitted but he wants my Medical Records to produce a Final Report as detailed within his Interim Report which proves I have been damaged by the Claimants and their Solicitors grossly unlawful conduct and lies to achieve yet another unlawful Injunction against me.”

Also included with Mr Elliott’s witness statement were:

The judge directed himself by reference to the two then recent authorities in this court, vizMitchell v News Group Newspapers Ltd [2014] 1 WLR 795 and Bianca Durrant v Chief Constable of Avon & Somerset Constabulary [2014] 1 WLR 4313. The judge accepted that whilst Mr Elliott’s application was not in terms an application for relief from sanctions under CPR 3.9, in practice it amounted to the same. This was because without compliance with the Order of Judge Pelling Mr Elliott, at the enquiry into the question whether he had suffered harm in consequence of which he should be compensated, could adduce no expert evidence as to his mental health condition, in consequence of which his claim would be bound to fail.

Judge Platts’ judgment continues:-

“18.

Whilst it is right that no specific sanction was provided for by His Honour Judge Pelling QC, it seems likely that that was because the defendant was not present at the hearing and therefore, he wanted probably to give him the opportunity to raise matters of which the court might have been unaware had he made an unless order at that point. Therefore, whilst not on fours factually with Mitchell and Durrant, it seems to me that the same principles as enunciated by the Court of Appeal must apply; in particular, the exhortation to apply a tougher, more robust approach towards enforcing compliance with rules is a principle of wide application and one which in my judgment this court must have regard when considering to these applications. So applying the law it is accepted, and it has to be, that the order of Judge Pelling was not complied with in that the medical evidence was not served by 4pm on 16th September 2013. It was not served until 13th November and it was not until 29th November that an application to extend time was made.

19.

I look at all the circumstances of the case and the particular matters I focus on are whether the non-compliance can be described as trivial or insignificant and whether a good reason has been shown for non-compliance. As to whether it is trivial or insignificant the following factors are, in my judgment, important.

(1)

This was not the first failure to comply with an order for serving expert medical evidence. The defendant had failed to comply with the order of 2lst March by which he was due to serve his report by 3rd May. Further, by his e-mail of that date he undertook to provide a report within seven day of an appointment with Dr Prosser on 25th May, he did not provide that report either.

(2)

The application to vary or extend time has not been made promptly by any stretch of the imagination. Indeed, as I have said, it was only made on 29th November after the claimants indicated an intention to apply to strike out the claim.

(3)

The delay is considerable. The defendant, as I have said was only examined by Professor Turkington on 11th November some six months after he should originally have served the report pursuant to the order of 21st March. Further, he told me at the hearing that he had only yesterday, or now the day before yesterday, provided authority for release of certain of his medical records.

(4)

It is important that the order of His Honour Judge Pelling QC provided for sequential exchange of medical evidence. Therefore, the obtaining of reports was dependent upon the defendant first serving his evidence. His failure to do so has effectively brought the enquiry into damages to a halt. When the enquiry for damages was ordered, it could reasonably have been anticipated that it would come on for trial within the autumn of 2013 at latest. As it is it is now unlikely, even if relief is granted, to come on for trial for several months.

(5)

The order of 11th July was unambiguous. The defendant could have been under no misapprehension that a failure to comply with it would give rise at least to consideration of a strike out of that part of his claim on application by the claimants.

(6)

Although no trial date has been fixed, court resources have been utilised by this very hearing, as a result of which two days of valuable court time has been taken up dealing with the applications which would not have been needed on either side had the defendant complied with the orders.

(7)

I note that the claimants argue that there is still no compliance because Professor Turkington's report is incomplete as he needs to see the defendant's medical records before finalising his opinion. I have to say I do not place much weight on that argument. Had such a report been filed within time, then I doubt the claimants would have taken that point in order to strike out. If they had done, I doubt it would have succeeded because there would have been substantial compliance, with the order. However, that aside, for the reasons I have previously given, I am quite satisfied that the failure to comply cannot he described as in any way trivial or insignificant. There has, in my judgment, been a wholesale failure to progress the claim for damages for psychiatric injury and to comply with the court orders.

20.

The next issue is whether there is good reason shown for the failure to comply. Mr Elliottt, the defendant, advances two parallel reasons: first, that he did not have the funds to obtain expert evidence until November 2013 and; secondly, that for a period over the summer of 2013 he was too unwell to apply his mind to the litigation or to attend medical appointments. With regard to his lack of funds, I accept that his original intention was to obtain a report from his treating psychiatrist, Dr Prosser, whom he thought would he able to provide the report without charge. As I understand it, this hope was dashed when Dr Prosser effectively indicated that he was not prepared to do medico-legal work. The defendant’s case then is that it was only in November he was able to realise some assets, the nature of which are unspecified and unparticularised, to enable him to afford to obtain the report which he now seeks to rely on. With regard to his illness, his case is that in the summer of 2013 and certainly between July and September 2013 his illness was such that he was unable to cope with any correspondence concerning the litigation.

21.

There are, in my judgment, a number of difficulties with his arguments. Firstly, and importantly, he did not raise these matters with the court by way of formal application and, second, insofar as he did so in correspondence with the court, Judge Pelling was well aware of the matters when he made his order on 11th July 2013. I accept Mr Elliottt's submission that when the order for a psychiatric report was initially made, he made observations to Judge Pelling that he may be unable to afford it. However, the order was made notwithstanding those observations and it seems to me quite understandably given the need for such a report given the nature of the claim made.

22.

With regard to the illness, Judge Pelling on the hearing on 11th July 2013 expressly had before him the letter from Mr Creevy to which 1 have referred and the correspondence from the defendant to which I have referred. His order recited that he had considered those documents and in the light of those documents he felt it proper to make the order which he did and I have no doubt he tailored the order with due to regard to Mr Elliottt's position. Importantly, he made provision for an application to vary or set aside the order which was not taken up by the defendant. In any event, the medical evidence such as it was from Mr Creevy, in my judgment, did not suggest that the defendant was unable to attend for psychiatric examination. The concern was about, “The further stresses of court hearings," and yet, further, there is nothing in the opinion of Professor Turkington to support the defendant's contention that he was unable to progress the litigation or to attend a medical appointment due to his medical condition during the summer of 2013 when it would have been open for the defendant to invite Professor Turkington to comment on that part of his case.

23.

So in the light of the above, I am not persuaded that the reasons given for failure to comply which were advanced by the defendant are sufficiently good reasons so as to justify a further extension of time for service of the medical report. Mr Elliottt submits that to strike out his claim or this part of his claim would be a draconian measure in the overall circumstances of the case. He points out, with some justification, that there is some evidence that this injunction was obtained unlawfully and he relies upon the fact that permission has been granted by Judge Pelling for contempt of court proceedings to be brought in respect of allegedly false statements made for the purpose of obtaining the injunction in the first place. He claims that his psychiatric condition has been significantly exacerbated as a result not only of the fact of the injunction itself but also the way in which it was obtained and, belatedly, he has some expert support in relation to that, albeit in an incomplete report. He submits it would he contrary, therefore, to his rights under Article 6 for him to be deprived of the opportunity of pursuing that claim for damages at a trial.

24.

I fully take that argument into account and I fully acknowledge that a strike out is always a draconian step. However, in view of the culpable failure by the defendant to progress his own claim or to engage properly with the court process and balancing his rights to a fair trial with the claimants' own rights to a fair trial under Article 6, I have come to the conclusion that draconian though the order is, the claim for damages for psychiatric injury within the enquiry as to damages must he struck out.”

Mr Elliott was represented on this appeal by Miss Lisa Freeman. I should say at the outset that we were greatly assisted both by Miss Freeman’s careful and concise skeleton argument and by her clear and economical submissions which focused on the critical points. Ms Anderson was no less focused in her response.

It was Miss Freeman’s primary submission that the judge ought not to have approached the case on the footing that it was effectively an application for relief from sanctions to which the line of authority starting with Mitchell is relevant. She acknowledged however, that even were that so, her underlying submission was that the judge failed to take proper account of all the circumstances. She also acknowledged that, were this court now to approach the case in the light of the further guidance given in Denton v TH White Limited [2014] 1 WLR 3926, the evaluation at what was there called the third stage would be of all the circumstances of the case, so that the outcome here would ultimately be little affected whether the case was approached as involving relief from sanctions or not.

Miss Freeman suggested that the relevant circumstances not properly taken into account by the judge were:-

In support of that last point Miss Freeman carefully took us through the transcript of the hearing before Judge Pelling. It is right to say that Judge Pelling expressed concern about Mr Elliott’s mental health and about his ability for the time being to participate in court hearings. What was then being sought from Judge Pelling was various orders the effect of which would have been to debar Mr Elliott from proceeding if they were not complied with, and Judge Pelling foresaw a risk that if made the orders would not be complied with. It was for that reason that he held back from imposing an automatic sanction in the event of non-compliance, gave to Mr Elliott the opportunity to apply in writing, without the need to attend court, for the variation or discharge of the order and effectively postponed until after September the hearing of the enquiry as to Mr Elliott’s entitlement to compensation. That last is of course what Mr Elliott was seeking. However by paragraph 10 of his order Judge Pelling made very clear the likely consequence of non-compliance. It is not suggested that Mr Elliott did not understand the implications.

It is also important to note that Mr Elliott’s application of 5 July to adjourn the then forthcoming CMC was made on grounds of unfitness to attend court, not unfitness to attend a psychiatric examination, and that the judge considered but rejected the application to adjourn. Thereafter Judge Pelling took into account the mental health issues in the manner which I have described.

In Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633 this court took the opportunity to give guidance on the approach that should be taken to applications for extensions of time for filing a notice of appeal, in the light of the decisions of the court in Mitchell and Denton. In each case before the court in Hysaj the applicant had failed to file a notice of appeal within the time prescribed by CPR 52.4 (2), which made it necessary for him to seek an extension of time. At paragraph 43 of the judgment of Moore-Bick LJ it was pointed out that in the modern world inability to pay for legal representation cannot be regarded as a good reason for delay. At paragraph 44 it was pointed out that being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the Civil Procedure Rules or, I would add, court orders.

It is not suggested that Mr Elliott did not understand what the order of Judge Pelling required him to do. Moreover he is a very experienced litigator. It is however pointed out that he has mental health problems, and that this is a factor to be taken into account when ensuring that the administration of justice is not undermined. I accept that point. It is however for precisely that reason that Judge Pelling gave him what Ms Anderson described as “extra leeway” and crafted his order as he did.

As to impecuniosity, Miss Freeman points out that a litigant who is short of funds may represent himself but that Mr Elliott needed to pay for an independent expert’s report without which he could not proceed. The point is well made, but undermined by the circumstance that there is no independent evidence of Mr Elliott’s financial position at any relevant time. It is true that Miss Freeman was able to point to passages in a witness statement from Mr Alban Pepper, which the Stobart interests sought to introduce on the appeal, which suggested that even though Mr Elliott described himself as a multi-millionaire he was apparently unable in the summer of 2013 “to access any significant liquid funds.” Mr Pepper had provided some limited funding, about £6000, towards a construction project which he and Mr Elliott were jointly undertaking but in respect of which they apparently could not afford to pay contractors. Against this it is apparent that Mr Elliott was actively pursuing his business interests in the summer of 2013. In his most recent evidence, a witness statement of 27 March 2015, Mr Elliott says:-

“e.

During October 2013, I was able to reach an agreement with Mr Simon Michaels to lend me some money allow me to continue living. As soon as I managed to do this (which involved me taking a loan to repay and giving away 30% of the water business company (Shell) that had been set up) I contacted Professor Turkington and managed to get an appointment. I then saw him.

f.

I was categorically and simply in no financial position until that point to get any Report. By this time, I was already in breach of the interim Order so I didn’t believe that it would help me to write to the court.”

This is wholly unparticularised and undocumented. The reference to the water business is presumably to “the assets” to which Mr Elliott referred before Judge Platts, but there is no explanation as to why Mr Elliott could not have taken these steps, whatever exactly they were, earlier in the year. There is also no indication how much it cost Mr Elliott to obtain the report from Professor Turkington. The professor explains in his 15 page report that it is based upon an interview of one and a half hours in his consulting rooms in Newcastle. Whilst I am sure that Professor Turkington will have charged an appropriate professional fee, the evidence is quite insufficient to support the submission that until November Mr Elliott could not procure funds of that order.

It is important to note, as did Judge Platts, that the evidence from Mr Creevy did not suggest that Mr Elliott was at any material time unfit or unable to attend for psychiatric examination, or interview as Professor Turkington describes it. The emphasis, in reliance on Dr Prosser, was on the stress of court hearings. Mr Creevy’s letter of 28 November 2013 suggested that Mr Elliott had been selective in the litigation matters to which he would devote his attention during the summer months, a suggestion born out by Mr Creevy’s witness statement of 27 March 2015, paragraph 13 of which reads:-

“After referring to Mr Elliott’s medical notes, I can confirm that during the summer of 2013, Mr Elliott had a natural break from his legal disputes with his ex wife Leonie and also his former employer Stobart Limited and we agreed that it would be therapeutic for him to park those issues and concentrate on working on his farm to help him recover mentally and emotionally. He reported to me at the time that his patterns of work were sporadic and that he found he had the capacity to work at irregular times, even late at night and in the early hours of the morning.”

In my judgment Judge Platts was correct to treat this as a case in which the order of Judge Pelling by implication imposed a sanction for non-compliance, here the inability to proceed with the claim for compensation under the cross-undertaking. That was the approach taken by this court in Altomart Limited v Salford Estates (No 2) Limited [2015] CP Rep 8, [2014] EWCA Civ 1408 which concerned an application for an extension of time in which to file a Respondent’s Notice, and Hysaj, above, which concerned an application for an extension of time within which to file a Notice of Appeal. The tide is flowing strongly in that direction, and towards a less indulgent approach to non-compliance. However as Miss Freeman acknowledged, this makes little difference to the outcome of the case. Even if Judge Platts’ exercise of discretion must be revisited in the light of Denton, the critical enquiry is at stage three.

I should also mention that this is in my view a case where the prejudice to the Stobart interests resulting from non-compliance is far from trivial. As the judge rightly observed, Mr Elliott’s failure has brought the proceedings to a halt. When the enquiry was ordered in March 2013 it could reasonably be expected to have come on for trial by the autumn of 2013 at the latest. This action, if not all the other litigation, should by then have been resolved. Dealing justly with the application involves the interests of both parties being weighed in the balance. As the judge also observed, a considerable amount of court time has been devoted to the consequences of Mr Elliott’s failure to engage with the litigation process.

Miss Freeman submitted that Judge Platts failed to take into account that whether or not a psychiatric report was furnished on time, there would in any event have had to be a hearing to deal with the Stobart interests’ application to strike out the remainder of the claim made in Mr Elliott’s witness statement of 18 March 2013. That is true, but I do not consider that it invalidates the judge’s conclusion that the entire proceedings could reasonably have been expected to have been resolved by the autumn of 2013.

It is accepted that the failure was serious and significant. The judge considered carefully why the failure occurred. The judge on this hypothesis had next to consider all the circumstances of the case so as to enable him to deal justly with the application. Miss Freeman suggests that the judge failed properly to take into account the circumstances which I have set out at paragraph 36 above.

It is to be borne in mind that the court will only interfere with a discretionary decision of this sort if the judge below has misdirected himself, or if he has reached a decision which falls outside the ambit of reasonable decision making. The judge here directed himself impeccably, subject only to the gloss that the Mitchell principles have since been explained or refined in subsequent decisions to which we must have regard.

In my judgment this is a case in which Judge Pelling, who was uniquely well placed so to do, took very carefully into account all the relevant circumstances and, in the light thereof, drew back from making in July 2013 an order which imposed an automatic sanction for non-compliance. Judge Pelling of course had also to take into account the legitimate interests of the Stobart parties in seeking an economic and expeditious resolution of the litigation. Judge Pelling however leant over backwards to accommodate any difficulties in compliance which Mr Elliott might have and crafted his order accordingly. I agree with Ms Anderson that we should not lightly adopt a course which retrospectively undermines Judge Pelling’s careful exercise of his discretion. I also note in this regard that it is apparent from paragraph 21 of Judge Platts’ judgment that Mr Elliott made observations to Judge Pelling at the CMC on 21 March 2013 to the effect that he “may be unable to afford” a psychiatric report and that Judge Pelling nonetheless ordered that a report be produced. That was as Judge Platts observed understandable since without such a report the claim could simply not proceed.

We are however immediately concerned with the exercise of discretion by Judge Platts. In my judgment Judge Platts gave very careful consideration to all of the circumstances identified by Miss Freeman to which he could properly have regard. Inability to present for psychiatric examination was not made out and nor was inability to meet the cost of an independent report. The judge gave careful consideration not only to the manner in which Judge Pelling had taken into account the mental health issues but also to the extent to which, if at all, they were relevant to Mr Elliott’s failure to comply with Judge Pelling’s order. The judge found that Mr Elliott had ignored the opportunity given to him to apply in writing to vary the July order and that he had, in effect, simply ignored the requirements imposed upon him by that order. The judge was fully aware that a report had belatedly been produced and he gave little weight to the circumstance that it was incomplete. He was also fully aware of the draconian nature and effect of an order preventing Mr Elliott from pursuing his claim.

Professor Turkington at paragraph 6.7 of his report says this:-

“The prognosis for full recovery will depend upon the outcome of these legal proceedings. If he does not achieve the outcome that he believes to be just then it is my view that he will be likely to become chronically mentally unwell and may develop a chronic clinical depressive disorder. His use of alcohol instead of antidepressants is a negative factor and alcohol dependence syndrome is another possible long term complication. If he believes that his case has been heard and justice done and if he proceeds with CBT he should in due course achieve a degree of gradual recovery.”

Of course on the professor’s view these unfortunate possible consequences will only be avoided if Mr Elliott achieves the outcome which he desires, but I am prepared to accept that an inability to have his day in court could trigger a similar reaction. Judge Platts had read Professor Turkington’s report and I think it very unlikely that he had not taken this into account in his evaluation of the effects of the “draconian measure” which he was invited to take, albeit he makes no express reference to it. At the very end of his judgment, after dealing with the application to strike out the remainder of the claim in respect of matters other than psychiatric harm and loss, the judge recognised that the striking out of the claim in its entirety would be a huge disappointment to Mr Elliott.

In my judgment the conclusion which Judge Platts reached falls well within the range of reasonable decision making. It is not a conclusion to which no judge could reasonably have come. That is not to say that every judge would necessarily have come to the same conclusion, but that is not the test. The discretion was entrusted to Judge Platts and he exercised it in an exemplary manner and came to a permissible conclusion.

I referred at paragraph 41 above to the Stobart interests’ application to adduce fresh evidence on the appeal. Miss Freeman did not oppose that application, although she for her part sought to introduce further evidence in rebuttal from Mr Elliott and Mr Creevy, to which I have referred at paragraph 42 above. Ms Anderson objected to that part of Mr Creevy’s witness statement of 27 March 2015 which was, she submitted, not responsive to the further evidence of the Stobart interests, but as is apparent I have had regard to his evidence as a whole. For the avoidance of doubt therefore I would allow the applications to adduce further evidence of 24 and 27 March 2015 by the Stobart interests and Mr Elliott respectively, but I would dismiss the appeal.

I agree.

I also agree.