Adva Optical Networking Ltd and Another v Optron Holding Ltd Rotronic Instruments (UK) Ltd (Third Party/Respondent)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Coulson,The Hon. Mr Justice Coulson |
| Judgment Date | 21 July 2017 |
| Neutral Citation | [2017] EWHC 1813 (TCC) |
| Date | 21 July 2017 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2016-000233 |
[2017] EWHC 1813 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Coulson
Case No: HT-2016-000233
Case No: HT-2017-000122
and
Mr Jonathan Ward (instructed by Taylors Solicitors LLP) for the Applicant
Mr Thomas Bell (instructed by stevensdrake solicitors) for the Respondent
Hearing date: 14 July 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
These proceedings are concerned with allegedly defective in-line socket electrical cables which were ultimately supplied by the principal claimant, ADVA, to BT. BT's claim against ADVA has been settled, and ADVA seek to pass on the sums paid in consequence of that settlement, on Biggin v Permanite principles, down the supply chain to Optron. Optron in turn pass on the claim to their supplier, Rotronic. There has been a reasonable amount of cooperation between ADVA, Optron and Rotronic, but the last alleged link in the supply chain, A One, have not been so accommodating. That explains why, amongst other things, there are two sets of proceedings.
Rotronic served their Particulars of Claim on A One on 10 March 2017. In consequence, an Acknowledgement of Service or a Defence should have been filed by A One not later than 24 March 2017. Neither eventuated: in the end, it was only by a letter from their solicitors, dated 16 June 2017, that A One even acknowledged the existence of the proceedings, and the claim that had been brought against them.
Although default judgment has not been entered in favour of Rotronic, A One require relief from sanctions, in accordance with r.3.9, if they are to prevent such judgment being entered. I heard A One's application for relief from sanctions during the case management conference in the two actions (which had already been adjourned for four weeks, because of A One's late acknowledgement of the claim against them), and promised to provide my ruling no later than 21 July 2017.
OUTLINE CHRONOLOGY
The main proceedings, commenced by ADVA, have been the subject of at least one Standstill Agreement. Pleadings have been exchanged and there have recently been some amendments and consequential amendments, all dealt with by consent. No other steps in the main proceedings have yet been taken. At the CMC, I made directions for disclosure, witness statements and experts' reports, leading up to a trial fixed for 23 April 2018.
As noted above, Rotronic commenced separate proceedings against A One because they refused to be a party to the Standstill Agreement. Those proceedings were commenced in 2016. On 25 November 2016, an extension of time in respect of the service of the Particulars of Claim (up to 13 March 2017) was granted. The Particulars of Claim were served on 10 March 2017. A One did not respond.
Rotronic's solicitors wrote to A One in connection with the proceedings on 11 April 2017 and again on 10 May 2017. The second letter strongly advised A One to obtain legal advice "as a matter of urgency", advice they had first given almost a year earlier, on 18 July 2016. There was no response to either letter. Rotronic's solicitors wrote again to A One on 25 May 2017, and again there was no response. It was only in June 2017 that A One gave any indication that they had even received the Particulars of Claim and other material from Rotronic and/or their solicitors.
The CMC in both actions was fixed before Carr J on 16 June 2017. On the day of the hearing, A One's solicitors emailed a letter to Rotronic's solicitors in which they said that they had only recently been instructed and that they were not yet in a position to deal with the detailed directions. Thus, the first CMC was largely aborted. Carr J ordered that, if A One wanted relief from sanctions, they had to issue their application no later than 23 June 2017. She ordered that any such application should be heard at the re-fixed CMC.
On the last day ordered by Carr J (namely 23 June 2017), A One made an application for an extension of time for service and/or relief from sanctions. It also sought an order setting aside default judgment although, as I have indicated, no such judgment has in fact been entered. A One's application was supported by a witness statement from Mr Stuart Beatson, a solicitor with Taylors, A One's solicitors. The statement exhibited, amongst other things, a draft defence. There was a statement in response from Mr John Lovatt, Rotronic's solicitor.
By the afternoon of the day before the revised CMC (namely 13 July 2017), I had received skeleton arguments from ADVA, Optron and Rotronic, but nothing from A One. My clerk's enquiries (which were hampered because Taylors had put the incorrect telephone number on their own application form) revealed that they were apparently unaware of the refixed CMC. Mr Ward was instructed and provided a helpful skeleton argument on the morning of the hearing. He did not seek a further adjournment.
THE APPLICABLE PRINCIPLES OF LAW
For present purposes, the relevant parts of the CPR are r.3.9 and r.13.3. They provide as follows:
" 3.9 — Relief from sanctions
(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 of the case, so as to enable it to deal justly with the application, including the need—
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.
…
13.3 — Cases where the court may set aside or vary judgment entered under Part 12
13.3 (1) The court may set aside or vary a judgment entered under Part 12 if—
(a) the defendant has a real prospect of successfully defending the claim…"
There was a suggestion in the letter of 16 June 2017, reiterated in Mr Beatson's statement, that A One did not really require relief from sanctions at all, and that this was a relatively simple application for an extension of time to serve a defence. Mr Ward did not pursue that argument. In my view, he was right not to do so. The correct approach is that a retrospective application for an extension of time to serve or file a document should be dealt with on the same principles as a claim for relief from sanctions: see R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472.
The leading case on relief from sanctions is, of course, Denton and Others v T H White Limited [2014] 1 WLR 3926. There, the Court of Appeal ruled that an application for relief from sanctions must be addressed in three stages:
(i) Identify and assess the seriousness and significance of the failure to comply with any rule;
(ii) Consider why the default occurred;
(iii) Evaluate all the circumstances of the case, so as to enable the court to deal justly with the application, including the factors in sub-paragraphs (a) and (b) of r.3.9(1).
There is a plethora of decisions post- Denton, but the vast majority of them turn on their own facts. The only two that I should identify here are Gentry v Miller [2016] 1 WLR 2696, in which the Court of Appeal made plain that the principles relating to relief from sanctions also apply to cases concerned with setting aside default judgment; and ...
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