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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Singh v Singh [2013] EWHC 4571 (Ch) (18 December 2013) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2013/4571.html Cite as: [2013] EWHC 4571 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY

		Claim No. 2MA30548 Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		18th December 2013

HIS HONOUR JUDGE HODGE QC:

1. This is my extemporary judgment on the substantive appeal by Mr Daya Fhatta Singh, the defendant to proceedings initiated by his mother, Mrs Belvinder Kaur Singh, from orders of District Judge Khan made on 9^th and 23^rd July 2013. On the hearing of this appeal, Mr Nathan Smith (of counsel) appears for the appellant and Mrs Sarah Lawrenson (of counsel) appears for the respondent. I have already delivered two extemporary rulings earlier today. In the first, I granted an extension of time for appealing the costs provision made in the earlier of District Judge Khan's orders. In my second extemporary ruling, I refused the appellant permission to rely upon a witness statement dated 12^th August 2013. My reasons for those rulings are set out in my two earlier extemporary judgments.
2. I now have to deal with the substantive appeal. I also have to consider as a preliminary to that whether permission to appeal should be granted. The relevant principles are not in dispute and are set out in CPR 52. By sub-rule 51.3(6), permission to appeal may be given only where (a) the court considers that the appeal would have a real prospect of success or (b) there is some other compelling reason why the appeal should be heard. By CPR 52.11(3), the appeal court will allow an appeal where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
3. The first element of this appeal relates to paragraph 1 of District Judge Khan's order of 9^th July whereby he declared that the defendant had failed to comply with paragraph 2 of an earlier order made by District Judge Khan on 17^th April 2013. The district judge also ordered the appellant to pay the respondent's costs of the application notice dated 2^nd May 2013 which had led to that declaration. By the time that application had come on for hearing before the District Judge, the appellant had issued his own application on 5^th July seeking permission to amend his defence and seeking relief from sanctions under CPR 3.9. There was no time to deal with that application on 9^th July and it was therefore adjourned to the case management conference on 23^rd July 2013, which had been fixed by District Judge Khan's earlier order of 17^th April.
4. When the matter came back before District Judge Khan on 23^rd July, he dismissed the appellant's application of 6^th July, and thus refused permission to amend the defence, and he refused the application for relief from sanctions. Consequent upon that, the judge declared that the transfer of 12^th January 2009 relating to 47 Midland Road, Bramhall, Stockport from the respondent to the appellant was null and void; and he further declared that that property, which was currently registered in the sole name of the appellant, was held upon trust for the respondent. The appellant was ordered to execute and deliver to the claimant a transfer of the property into her name.
5. The appellant's notice was filed on 12^th August 2013 within the extended period of time given by District Judge Khan for appealing the substantive element of his order of 9^th July, and within the prescribed period of 21 days from his order of 23^rd July. The appeal file came before me on 14^th August, when I granted a partial stay of the District Judge's order. Essentially, by that, and subsequent orders, I stayed the provisions for the appellant to execute a transfer of the property into the respondent's name, and to deliver up possession of the property to her, until after the final disposal of this appeal. I made subsequent case management orders on a number of other occasions which have led up to the hearing of this appeal today.
6. In order to understand the decisions reached by District Judge Khan on 9^th and 23^rd July it is important to relate the history of these proceedings. They began even before the issue of the claim form with an application made, without notice to the respondent, for an injunction restraining him from in any way dealing with, disposing of, charging or diminishing the value of the 47 Midland Road, Bramhall property. That order was made by His Honour Judge Waksman QC, sitting as a judge of the Chancery Division in the Manchester District Registry, on 14^th November 2012, and it was continued a week later by the order of His Honour Judge Bird, sitting in the same capacity, on 21^st November 2012. The claim form had, in the meantime, been issued in the Manchester District Registry on 15^th November 2012. It sought a declaration as to the rescission and/or the validity of the transfer by reason of what was said to be undue influence and duress.
7. Judge Bird's order of 21^st November directed the respondent to file and serve particulars of claim by 4pm on 12^th December 2012, and for the appellant to file and serve a defence by four o'clock on 9^th January. He also listed the matter for a case management conference at 10.30am on 31^st January 2013 before His Honour Judge Pelling QC. The respondent duly filed and served her particulars of claim, but no defence was filed or served by the appellant, whether by four o'clock on 9^th January or before the hearing before Judge Pelling on 31^st January. Accordingly, on 10^th January 2013, the respondent's solicitors, Stephensons, issued an application, returnable at the case management conference before Judge Pelling, seeking an order that in default of the defendant filing and serving any defence in accordance with Judge Bird's order, the court should grant judgment in default to the respondent in accordance with CPR 12.3.
8. A draft defence and counterclaim, unsigned by the defendant, was available at the time of the hearing before Judge Pelling. What he therefore did was to order that unless by four o'clock on the day of the case management conference, 31^st January, the defendant filed a copy of his signed defence in accordance with the draft provided to the court, judgment should be entered in favour of the claimant, the respondent to this appeal, in accordance with the draft order provided. If the defendant did file his signed defence by four o'clock on 31^st January, the following directions were to apply.
9. First, the defendant was to serve a copy of his signed defence upon the claimant by 12 noon on the following day together with notice of any legal services funding. Then the claimant was to file her reply and defence to counterclaim by four o'clock on 15^th February 2013. There was to be standard disclosure by list by 4pm on 1^st March 2013, with inspection to take place no later than 4pm on 8^th March 2013. Witness statements were to be mutually exchanged by 4pm on 28^th March 2013.
10. Directions were given for the appointment of a single joint expert to deal with the rental value of the 47 Midland Road property. Paragraph 9 of Judge Pelling's order listed the matter for trial before him on 20^th May 2013, with an estimated length of hearing of three days. Consequential directions leading up to that trial were also given. The defence and counterclaim, verified by a statement of truth made by the appellant and dated 31^st January 2013, was duly filed at court, and served on the respondent, in accordance with Judge Pelling's order.
11. On 20^th February 2013, the respondent's solicitor, Stephensons, applied for an order striking out the defence pursuant to CPR 3.4(2)(a) as disclosing no reasonable grounds for defending the claim, and seeking the entry of judgment for the claimant. In the alternative, the respondent sought summary judgment pursuant to CPR 24.2 on the footing that there was said to be no real prospect of defending the claim, and there was no other compelling reason why the case should be disposed of at trial.
12. That application ultimately came on for hearing before District Judge Khan on 17^th April 2013. By that time, disclosure had been given, although the respondent says that it was late on the part of the appellant. Also, the respondent had served her witness evidence in accordance with the terms of Judge Pelling's order. The appellant made a witness statement on 9^th April 2013 expressly to deal with the matters raised in the witness statement of his mother, which had been forwarded to his solicitors on 28^th March 2013. In other words, rather than a mutual exchange of witness evidence, the appellant received the witness statement of the claimant and then responded to it. That witness statement was apparently before District Judge Khan on 17^th April.
13. What happened at that hearing is recorded at paragraphs 12 through to 14 of District Judge Khan's judgment of 9^th July. Essentially, on that day, District Judge Khan struck out the existing defence and counterclaim of 31^st January 2013, and (by paragraph 2 of his order) he ordered that unless by four o'clock on 24^th April the appellant filed and served his defence and any counterclaim, he should be debarred from defending, it says, the counterclaim but clearly the claim was intended. If the appellant complied with paragraph 2, the respondent was to file and serve an amended reply and defence to any counterclaim by four o'clock on 3^rd May 2013. I should observe that the respondent had already filed a reply and defence to the original struck out defence and counterclaim dated 21^st February 2013. Reliance was placed on that at the hearing on 17^th April.
14. District Judge Khan's order of 17^th April also extended time for standard disclosure, and it vacated the existing trial, then listed for hearing on 20^th May. Time for production of the report of the single joint expert was also extended to four o'clock on 24^th April. District Judge Khan listed the matter for a case management conference on 23^rd July, at which the parties were required to provide information as to the names of their respective witnesses, the factual issues upon which they were to give evidence, the length of the witness statements, and which of the witnesses would require to give evidence through an interpreter. The parties were also required to attend with all necessary information to enable the case to be timetabled through to a final hearing, including availability for the period commencing 19^th August and ending 15^th November 2013. Clearly, a trial was envisaged at some stage during that period.
15. The appellant was required to pay the respondent's costs of the application of 20^th February and the costs of any consequential amendment or thrown away, which were to be assessed in any event. In purported compliance with that order, the appellant filed a defence and counterclaim, verified by a statement of truth dated 23^rd April 2013. Unlike the earlier statement of case, that defence and counterclaim was signed not by the appellant himself but by a member of Henry Solicitors, who were then acting for the appellant. The defence and counterclaim does not bear the name of counsel.
16. The defence ran to 27 paragraphs rather than the earlier 15, but the counterclaim was in precisely the same terms as the earlier counterclaim that had been struck out. Indeed, paragraph 27 of the defence indicated that the defendant would rely on paragraphs 1 to 15 of the new defence by way of set-off or in total extinction or diminution of the claim. The counterclaim then repeated paragraphs 1 to 15 - although there were now 27 paragraphs in the defence - and the relief counterclaimed was precisely in the same terms of that of the earlier stuck out counterclaim.
17. That document two provoked an application by the claimant. It was issued on 2^nd May. It sought an order that the defendant was in breach of District Judge Khan's order of 17^th April as the defendant had failed to file an amended defence complying with CPR PD17 and, in accordance with that order, was further debarred from further defending the claim. Further or in the alternative, it was said that the claimant was entitled to summary judgment on all of those matters referred to in the attached witness statement pursuant to CPR 16.5(5). Further or in the alternative, the application notice sought an order striking out the defence under CPR 3.4(2)(a). The application notice was supported by a witness statement from Heather Korwin-Szymanowska dated 2^nd May 2013. She is a solicitor with Stephensons, who act for the respondent.
18. The application notice sought that the application should be dealt with without a hearing but, in fact, by an order dated 17^th May and sealed on the 23^rd, District Judge Khan ordered that the application should be heard on 9^th July by him, with an estimated length of hearing of one and a half hours. He directed the respondent to serve the application notice and supporting evidence by 4pm on 30^th May. He further directed the appellant to file and serve evidence in the form of written witness statements in reply by 4pm on 13^th June 2013, and for the respondent to file and serve evidence in answer, if so advised, by four o'clock on 20^th June 2013.
19. Paragraph 5 of the order provided that no party might rely upon any evidence not served in accordance with the provisions of the order without the court's permission. The order gave any party affected by its terms permission to apply to have it set aside or varied within seven days of service. Directions were also given for a hearing bundle, and for skeleton arguments to be exchanged by four o'clock on 4^th July.
20. As I have mentioned, an application notice was issued by the appellant on 5^th July. It was supported by a short witness statement from Mr Terry Walsh, a solicitor with Henrys, the appellant's then solicitors, dated 5^th July 2013. No other evidence was filed or served by or on behalf of the appellant. It was against that background that the matter came on for hearing before District Judge Khan on 9^th July 2013. As I have mentioned, on that day the District Judge declared that the appellant had failed to comply with paragraph 2 of his earlier order of 17^th April, which had required the defendant to file and to serve his defence by four o'clock on 24^th April, in default of which he should be debarred from defending the claim. The district judge's reasons are set out in the approved transcript of his extemporary judgment, which appears at pages 318 to 327 of the appeal bundle.
21. There are no less than six grounds of appeal in respect of that order. First, it is said that the District Judge erred in fact and/or law by failing to consider the correct issue. He considered whether or not he should strike out the claim under CPR 3.4(2)(c); that is to say on the grounds that there had been a failure to comply with a rule, practice direction or court order, whereas it is said that he should have considered whether, by filing an amended defence dated 23^rd April 2013, the appellant had complied with paragraph 2 of the 17^th April order and/or what was necessary to comply with such an order. Alternatively, the failure to consider that correct issue is said to be a serious procedural irregularity. From my reading of the district judge's judgment, I am entirely satisfied that he did not fall into that particular error. What the District Judge did was to address the question whether the defence dated 23^rd April 2013 was a defence that complied with CPR 16.5. That is clear from the concluding paragraph of his judgment, in which he expressed himself to be satisfied that the appellant was in breach of the order and so was debarred from defending the claim.
22. The second ground of appeal is said to be that the District Judge erred in fact and/or law by declaring that the appellant was in breach of paragraph 2 of the order in circumstances where the appellant had filed an amended defence before the expiry of the deadline set down by that order. Again, I reject that ground of appeal. Mr Smith, who appears for the appellant, submits that paragraph 2 was complied with because the appellant had filed a defence. Even if, which he disputes, that defence did not comply with CPR 16.5, it was nevertheless a defence, and therefore there was no non-compliance with paragraph 2 of the order of 17^th April. I reject that submission.
23. It is quite clear that what paragraph 2 of the order required was the service of a defence in proper form, complying with the requirements of the Civil Procedure Rules. That would have been so, even if one looked at the matter divorced from the background to the order itself. But one cannot divorce the order from the circumstances that led to it. The defendant had been in receipt of an application to strike out the defence as disclosing no reasonable grounds for defending the claim. It is quite clear that it was recognised by counsel then representing the appellant, not Mr Smith but Mr Farrell, that there were deficiencies with the defence; and it was for that reason that the first version of the defence was struck out and a new version was ordered. Clearly, against that background, the new defence had itself to comply with the requirements of the Civil Procedure Rules.
24. The third ground of appeal is that in any event the District Judge erred in fact and/or law in concluding that the amended defence did not comply with CPR 16.5 and/or that it did not set out the nature of the appellant's case sufficiently clearly in relation to the relevant issues so as to comply with CPR 16.5(3) and/or was not sufficient to comply with paragraph 2 of the 17^th April order. Again, I am entirely satisfied that there is no substance in that ground of appeal. CPR 16.5 requires, so far as material, by sub-rule (1), that in his defence the defendant must state (a) which of the allegations in the particulars of claim he denies, (b) which allegations he is unable to admit or deny but which he requires the claimant to prove, and (c) which allegations he admits. By sub-rule (2), where the defendant denies an allegation, he must state his reasons for doing so; and if he intends to put forward a different version of events from that given by the claimant, he must state his own version. By sub-rule (3), a defendant who (a) fails to deal with an allegation, but (b) has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant should be taken to require that allegation to be proved. Sub-rule (4) has no application to a claim such as the present. Sub-rule (5) provides that, subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.
25. In his judgment of 9^th July, the District Judge set out the provisions of CPR 16.5 (so far as material) at paragraph 18. At paragraph 19, he recorded that counsel then appearing for the appellant, Mr Richard Moore, invited the District Judge to strike out version two of the defence on the basis of the failure to comply with those provisions. He recorded the submission of Mr Smith that the nature of the case advanced by the appellant was sufficiently clear from version two; and, in any event, having regard to the interplay between sub-rules 5(3) and 5(5) of CPR 16, the application was said to be a somewhat pedantic attack on the statement of case.
26. The district judge set out the overriding objective at paragraph 23 of his judgment. At paragraph 26, he said that whilst he had taken into account the fact that if one reads version two one may see the nature of Mr Singh's case, it seemed to him that it was difficult to say that it was made out sufficiently clearly; and whilst the District Judge had taken into account the observations made by Mr Smith in connection with the interplay between sub-rules (3) and I think it should be (5) of 16.5, the overriding objective was served by parties to litigation, particularly a defendant in Mr Singh's position, setting out clearly and concisely the facts that he relied upon, and, in relation to those allegations that were made against him, which facts he admitted, which facts he denied, and, in relation to those facts which he denied, what he said by way of counter-allegations.
27. The district judge recorded that only then could the respondent know, in consultation with her solicitors, precisely the case that she had to meet, and precisely the factual and documentary evidence that she had to seek to obtain to deal with those allegations that were made. It seemed to him that, litigating in the modern age, one should not leave to chance the matters that Mr Smith had identified, and leave it to a claimant in the respondent's position to be able to determine, from silence in the appellant's statement of case, what case was being suggested against the respondent or otherwise.
28. At paragraph 27, the District Judge said that he considered that the criticisms levelled by Mr Moore against version two of the appellant's defence were well made out; and it seemed to him that it would further the overriding objective to accede to the application of 2^nd May. He said that he bore in mind that the decision he had reached would appear to be unfair to Mr Singh, but that lack of fairness had to be weighed against other factors, namely the lack of fairness to Mrs Singh; and that to grant the application was unexpeditious in terms of an efficient way of dealing with the claim. He bore in mind the fact that had the appellant properly complied with the order of 17^th April, and served a compliant defence, then the present application would not have been necessary. He said that the court had had to allot additional resources to the case arising out of the appellant's failure to comply with the rules. That was said to be an important consideration because the allocation of resources to the case affected the ability to allot resources to other court users.
29. Furthermore, the order that he proposed making enforced compliance with not only the district judge's order of 17^th April, but also the provisions of CPR 16.5. He looked, by way of illustrative example, at a number of failures on the part of the appellant, which he proceeded to identify. He criticised the counterclaim. At paragraph 32, he acknowledged that it was part of the appellant's case that he owned number 47 absolutely. He then dealt with various criticisms advanced by Mr Moore against version two of the defence. I am entirely satisfied that the criticisms identified at paragraphs 33, 34, 38, 39, 40, 41, 42, 43 and 44 of the judgment are all well founded.
30. Mr Smith addresses those paragraphs in his written skeleton argument, and he took me through the corresponding paragraphs of both the particulars of claim and version two of the defence. Whilst I am not satisfied that the criticisms advanced in paragraphs 35, 36 and 37 of the judgment are necessarily well founded, I am satisfied that the criticisms in the other paragraphs I have previously identified are well founded. Mr Smith was constrained to accept that the appellant had not dealt in detail with each allegation; but he submitted that he had made sufficiently clear the nature of his case to comply with CPR 16.5.
31. It does seem to me that there are deemed admissions in relation to matters which it is quite clear the appellant does not intend, in fact, to admit. The paragraphs, criticism of which by the District Judge I have endorsed, do seem to me not to represent the true nature of the defendant's case as it was set out in the witness statement that he had served on 9^th April or in version three of the defence. Also, the defence does not, in the respects identified by the district judge, correctly set out the nature of the appellant's case on those matters. Mr Smith criticises the District Judge for not having regard to the contents of the witness statement of 9^th April and version three of the defence; but had the District Judge done so, it would only have reinforced the criticisms that the District Judge had levelled at version two of the defence. For example, and by way of illustration only, no positive case is advanced as to any advice that was given by the solicitor who was responsible for the drafting of the relevant transfer to the appellant, yet it is clear that a positive case is sought to be advanced by the appellant in that regard.
32. I do not accept that version three is just a fleshing out of what is said in version two. Indeed, it seems to me quite clear that version three is in some respects inconsistent with what had been said by the appellant in a witness statement that he had made as early as 20^th November 2012, and it raises for the first time (in paragraphs 6 and 7) allegations of the earlier property being held by the claimant on a constructive and/or resulting trust for the benefit of the appellant, or this giving rise to some form of proprietary estoppel interest both in the earlier property and also the property the subject matter of this litigation, which had been purchased with the assistance of monies raised from the earlier property.
33. If one stands back and views a statement of case, as in my judgment one should, as marking out the parameters of the case that is being advanced by the relevant party to litigation, and as identifying correctly the issues and extent of the dispute between the parties, stating concisely the general nature of the relevant party's case, it seems to me quite clear that version two of the defence is, as the District Judge found, woefully deficient. Indeed, I am entirely satisfied that it fails to comply with the requirements of CPR 16.5. In my judgment, the District Judge was right to find, as he did, that Mr Singh was in breach of the 17^th April order.
34. It is quite clear from two recent Court of Appeal decisions, Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, especially at paragraph 45, and the even more recent decision of the Court of Appeal in Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624 at paragraph 40, that the starting point should be that where a court order contains a sanction, that sanction had been properly imposed and complied with the overriding objective. The sanction for not serving and filing a defence by four o'clock on 24^th April was that the defendant should be debarred from defending the claim. Since I am satisfied that the District Judge was right to find that the defence did not comply with CPR 16.5, and thus was not a proper defence, the consequence was that the defendant was debarred from defending the counterclaim unless relief from that sanction was obtained.
35. The fourth ground of appeal is that the District Judge erred as a matter of law in refusing to take into account the defendant's witness statement of 9^th April insofar as there was any ambiguity in the amended defence, in circumstances where that statement had already been taken into account at a previous hearing on 17^th April. There are, in my judgment, a number of answers to that. First, the District Judge did consider the witness statement at paragraphs 20 and 21 of his judgment, and in the exercise of his discretion he declined to receive it in evidence. I am not satisfied that there was any relevant error on the part of the District Judge in the exercise of that discretionary case management power to exclude evidence.
36. The witness statement had not been served in accordance with the district judge's order; and the District Judge took the view that, although it was in the bundle, the appellant should not be entitled to rely upon it. I cannot see that the district judge's discretion can be criticised in any way. But, more fundamentally, so far as the specific criticisms of version two of the defence are concerned, I am not sure that the witness statement would have assisted Mr Singh in any event, particularly when contrasted with his earlier witness statement from November of last year. And, in any event, as Mr Smith accepts, if the question was whether the defence complied with the Civil Procedure Rules, the fact that it may have been fleshed out in the witness statement is irrelevant to the issue of compliance. Any ambiguities or deficiencies in the pleaded version two of the defence could not be cured by a witness statement. For those reasons, I also reject ground number five that the District Judge erred as a matter of law and/or in the exercise of his discretion by refusing to hear an application to admit the 9^th April witness statement into evidence.
37. The sixth and final ground of appeal in relation to the 9^th July order is that in any event the judge erred in the exercise of his discretion in striking out the version two of the defence in that he failed to take into account (1) that that version addressed the criticism made by the judge at paragraph 9 of version one of the defence at the hearing on 17^th April, (2) that version two had more than a reasonable prospect of success and/or raised serious issues to be tried, (3) the serious consequences for the defendant of the amended defence being struck out, namely that he and his young family would be made homeless, (4) that striking out a defence should be a last resort and/or there were other options available to the judge, such as requiring the defendant to respond to certain paragraphs of the particulars of claim, (5) that in any event the defendant had provided clarity in respect of all the points raised by the claimant in her application of 2^nd May by the date of the hearing on 9^th July by filing version three of the defence; that is said to address any and all of points raised by the claimant, which the judge failed to take into account at all, and (6) that he thereby reached a decision that was outside the ambit of his discretion and/or was wrong.
38. If the matter were one of discretion, I am not satisfied that any of those criticisms have been made out to an extent sufficient to vitiate the exercise of the district judge's discretion. But it seems to me, in the light of the point made in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 that the starting point should be that the sanction has been properly imposed and complies with the overriding objective. The matter was not one for the exercise of the district judge's discretion at all. He had directed that there should be service of a defence by a certain date, in default of which the defendant was to be debarred from defending the claim. For reasons with which I agree, the District Judge held that no such defence had been filed by the requisite date. Therefore, there was already in place an order debarring the defendant from defending the claim.
39. So, I am satisfied that the district judge's decision declaring that the defendant had failed to comply with paragraph 2 of the 17^th April order was right and was not wrong. Since Mr Smith has argued the point for almost an hour and a half of the two hours in total that he addressed the court, it seems to me that I should give permission to appeal the order of 9^th July, but I will dismiss the appeal.
40. I turn then to the appeal from the refusal to give permission to amend the defence and to give relief from sanctions. The district judge's reasons for that are contained in the approved transcript of his judgment of 23^rd July. I must now approach the district judge's decision with the benefit of the guidance (which was lacking to him) of the decisions of the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624. As Mr Smith acknowledged, the thrust of the Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 decision can be found in paragraphs 40 and 41. One must first begin by considering whether the non-compliance with the relevant court order can properly be regarded as trivial. If so, the court will usually grant relief, provided that an application for relief is made promptly. If, however, the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court would be likely to decide that relief should be granted.
41. That approach was endorsed by the Court of Appeal in Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624. At paragraph 41, Lord Justice Richards said that the judge in the lower court in that case, who had granted relief from sanctions, had not appreciated that the two considerations specifically mentioned in the new CPR 3.9, namely the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules, practice directions and court orders, should be given greater weight than the other factors to which the court is required to have regard by the requirement to consider further all the circumstances of the case. Lord Justice Richards also said that the judge in the lower court had not appreciated how much less tolerant an approach towards non-compliance with rules, practice directions and orders was required by the new rule.
42. Those failures led the Court of Appeal to refuse relief from sanctions, and to reverse the order of the lower court that had given such relief. The reasons were set out at paragraph 51; taking everything into account, and placing particular weight on the failure to make a prompt application for relief from sanctions, the court had come to the conclusion that the application for relief should be refused, even in relation to the evidence of the two witnesses whose statements had been tendered at an earlier stage than those of the other witnesses.
43. Mr Smith, in his oral submissions, by reference to the decision of His Honour Judge Hand QC, sitting in the Central London County Court in June 2010 in the case of Naso Investments v Ramjan & Dawlish (17th June 2010), in particular at paragraph 61, submitted that the court should draw a distinction between default on the part of the litigant and default on the part of his legal representatives, and should take a more sympathetic approach in terms of the grant of relief against sanctions to failures on the part of legal representatives where the litigant himself could not properly be considered as bearing any responsibility for them. He submitted that a client should not be identified with the failures of his solicitor. He submitted that solicitor and client are not automatically to be treated as one, and that the Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 decision did not override previous Court of Appeal authority to that effect.
44. I cannot accept that submission. I prefer the competing submission of Miss Lawrenson that the law has changed with the removal of the specific requirements in the former CPR 3.9(1)(f) to consider specifically whether the failure to comply was caused by the party or his legal representative. Mr Smith reminded me of the reference in the commentary at paragraph 3.9.2 (at page 101 of the current (2013) edition of Civil Procedure) to the case of Welsh v Parnianzadeh [2004] EWCA Civ 1832; [2004] All ER (D) 170. That was a feature that the District Judge did bear in mind. It is addressed specifically at paragraph 18 of his judgment of 23^rd July, as was Mr Smith's earlier submission that Mr Singh was entirely blameless in the litigation process, and that any shortcomings, difficulties or failures were the result of either his instructing solicitors or previously instructed counsel.
45. The district judge referred specifically to those and to two others matters at paragraphs 17 to 20 of his judgment; and he then proceeded to deal with each of those points in turn. At paragraph 28, the District Judge observed that there was no evidence before the court in relation to Mr Singh's financial situation, or that of his wife, or any adult member of his family; but the District Judge did say that he bore in mind that the appellant proceeded with the claim on the basis of public funding, and that that might be an indication of his financial circumstances, although it was equally perhaps right to say that the probability is that he would be eligible for some form of assistance by way of housing benefit and the like. Mr Smith told me that that anticipation had proved well founded in that the appellant had obtained some temporary accommodation, where he was now living in a flat with his young family, having been housed by the local authority for a period of six months, although in accommodation not suitable given the size of that family.
46. The fact is that those were matters to which the District Judge did have regard, and I cannot say that he failed properly to exercise his discretion in that regard. The discretion was his and not for this court. Mr Smith submitted that had the District Judge accepted version three of the defence on 9^th July as addressing the deficiencies in version two, then the matter could have proceeded to trial at the case management conference that had been fixed on 17^th April. I cannot accept that. There was no time to deal with version three and the application for relief from sanctions on 9^th July. It was left over to 23^rd July. Had version three been approved then, it would have required further time for the service of a reply and defence to counterclaim. In view of the new issues being raised, it would also have required the parties to revisit the issue of disclosure, and probably the content of the existing witness statements. Clearly, the matter would not have been ready for trial in the period that had been contemplated by the order of 17^th April. As Miss Lawrenson says, that would have resulted in delay and prejudice to her client who, Miss Lawrenson submitted, had been ousted from her home.
47. Essentially, the grounds for appealing the 23^rd July order are said to be that the District Judge erred in the exercise of his discretion in refusing to grant relief from sanctions in the respects identified in sub-paragraphs 1.1 through to 1.7 of the grounds of appeal. Mr Smith expanded upon those grounds, both at paragraphs 40.1 to 40.6 of his skeleton argument for the purposes of the appeal, and in his oral submissions. He also relied upon paragraphs 40 and 41 of the skeleton argument he had submitted for the lower court. I am satisfied that the District Judge did not misdirect himself in any material respect, nor did he reach a conclusion which was not open to him.
48. The test for challenging an exercise of judicial discretion is set out in the notes at paragraph 52.11.4 at page 1753 of Civil Procedure. The appeal court should only interfere when it considers that the judge at first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the appeal court might, or would have, adopted, but he has exceeded the generous ambit within which a reasonable disagreement is possible. Before the court can interfere, it must be shown that the lower court has either erred in principle in its approach, or has left out of account some feature that it should have taken into account, or that it has taken into account some feature that it should not have considered, or that its decision was wholly wrong because the court is forced to the conclusion that the lower court has not balanced the various factors fairly in the scale.
49. The appeal court will only interfere if the lower court has taken immaterial factors into account, omitted to take into account material factors, or erred in principle, or has come to a decision that was impermissible. I am satisfied that none of those features is present in the present case. I acknowledge that the District Judge's decision was a robust one, as it was in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; but the District Judge was right to focus on the essential elements of the post-Jackson regime. The defaults in the second attempt to produce a defence to the claim cannot be considered minor or trivial, and there was no good excuse for them. They have resulted in two hearings before the District Judge, and a delay, if relief had been granted, in the progression of the case to trial. That would have had serious consequences for other litigants, as well as for the respondent to this appeal.
50. It may seem harsh for the appellant to lose the chance of defending the house which was transferred to him by his mother; but it is, in reality, no harsher than the decision which has resulted in Mr Mitchell being unable to rely upon a costs budget in a sum in excess of half a million pounds. The traditional approach of the courts to excuse non-compliance, if any prejudice caused to the other party can be remedied, is no longer one that the courts will endorse. The court now takes a tougher, and less forgiving, approach, as exemplified by both Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624. The district judge in the present case may not have had the benefit of those decisions; but I am satisfied that his approach was a permissible one, and is not capable of challenge on appeal. Again, since Mr Smith has argued the point before me, it would be appropriate for me to give permission to appeal the order of 23^rd July; but, again, I dismiss the appeal.
51. So, for those reasons, the order of the court will be that the appellant has permission to pursue his appeal against the costs order in the 9^th July order out of time. Permission to rely upon his witness statement of 12^th August is refused. Permission to appeal the order of 9^th July is given, but the appeal is dismissed. Permission to appeal the order of 23^rd July is given, but again the appeal is dismissed. I now anticipate that I have to deal with the issue of costs.
[Discussion re order follows]