Barring Order in UK Law

[60]Here, in contrast, no sanction has as yet been applied to HMRC. HMRC is in breach of the January directions but it has not been barred or had any other sanction applied. HMRC are not applying for relief from sanction. On the contrary, it is the appellant's application that the Tribunal bar HMRC out for breach of a rule 8(3)(a) unless order. The question for me is whether I ought to apply the sanction of barring.

[65]I conclude that in considering whether to grant the appellant's application to bar HMRC from further participation in this appeal I must consider all relevant factors. I will include in my consideration factors (a) and (b) from CPR 3.9 and accord them significant weight as part of my consideration of the overriding objective to deal with cases fairly and justly.

[73]There is very clear prejudice to the appellant in not knowing HMRC's case. Litigation is not to be conducted by ambush. The appellant has the right to be put in the position so that it can properly prepare its case: it needs to know HMRC's case not only before it gets to the hearing but before it prepares its witness statements and really before it prepares its list of documents.

By the Application Notice CLS sought relief in four parts, until trial further order: (1) an injunction restraining Mrs Huesca de Crean from using or disclosing confidential information; (2) an order that Mrs Huesca de Crean be prohibited, during the course of her employment with QH from undertaking any task or having any dealing in relation to the LSA or the commercial relationship between CLS, on the one hand, and QH and Klarius, on the other; (3) delivery up of all documents in whatever form in Mrs Huesca de Crean's possession which belong to CLS or contain confidential information belonging to CLS; (4) ancillary relief, most notably in the form of an affidavit verifying compliance with the delivery up order and requiring Mrs Huesca de Crean to give certain information as to any use or disclosure of the Confidential Information which she had made, and as to any documents belonging to CLS which she retained.

The rationale for the rule in Henderson v Henderson [1843] 3 Hare 100 that, in the absence of special circumstances, parties should bring their whole case before the court so that all aspects of it may be decided (subject to appeal) once and for all, is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever, and that a defendant should not be oppressed by successive suits when one would do: see per Sir Thomas Bingham MR in Barrow v Bankside Ltd [1996] 1 WLR 257, 260A-D.

Since Mr Azeez was out of time for complying with Judge Cowell's “unless” order, Judge Marshall treated his application as one for relief from the debarring sanction it imposed. Having heard his representations, Judge Marshall gave her reasons for refusing to grant any relief. To do so would involve adjourning the trial and there was no excuse for Mr Azeez's failure to comply with the consent and “unless” orders. The fact of his bankruptcy played no part in her reasoning.

1.If the Respondents fail to provide replies to each of the questions identified in the Appellants' Request for Further Information by 31 January 2014, the Respondents may be barred from taking further part in the proceedings …