Davis Solicitors Llp (Claimant/Appellant) v Fida Raja and Another

Hearing date: 19 February 2015

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

I will refer to Davis Solicitors LLP as the Claimant, and Fida Raja and Hande Riaz as the Defendants.

This is an appeal by the Claimant against the decision of HHJ Mitchell made at the Central London County Court on 1 August 2014 refusing the Claimant relief from sanctions, their appeal against the decision of Deputy District Judge Parker dated 13 December 2013, having been struck out on 31 March 2014, the Claimant having failed to comply with an 'unless' order of the court. Permission to appeal was granted by Knowles J on 18 December 2014.

The Factual Context

The Claimant is a firm of solicitors which practises from 34–36 High Street, Barkingside, Ilford, Essex. Ms Nancy Ballard, who appears for the Claimant, as she did below, is a sole practitioner in the firm.

The Defendants retained the Claimant with regard to the disrepair of a boiler at a property in respect of which they were co-tenants.

These proceedings relate to a claim made by the Claimant in respect of an unpaid invoice in the sum of £2,970 plus interest and costs. The Defendants defended the claim and counterclaim for damages for consequential losses incurred as a result of the alleged breach of duty and negligence of the Claimant. The counterclaim was resisted.

On 13 December 2013 Deputy District Judge Parker gave judgment, following a trial that had lasted one and a half days. The Claimant was ordered to pay to the Second Defendant £6,000 and to the Defendants the sum of £590 plus interest. In addition the Claimant was ordered to pay the Defendants' costs. The total sum to be paid by the Claimant to the Defendants pursuant to the judgment was the sum of £21,613.08 by 28 February 2014.

In his judgment DDJ Parker stated:

"It is difficult to conceive of a worse case in relation to poor service and a breach of the implied term in relation to reasonable skill and care.

The work undertaken by this Claimant has been shoddy, has failed to consider or make an assessment of the case as it developed, has failed to advise or have regard to the fact that the Defendants were not indigenous to England and their knowledge of the law and customs was challenging to them. Above all the Claimant has been negligent. I am satisfied to the requisite standard of proof."

The Claimant filed a Notice of Appeal seeking permission to appeal against the order of Deputy District Judge Parker.

On 11 February 2014 HHJ Wulwik, upon reading the Claimant's Notice of Appeal and a transcript of the judgment of DDJ Parker, ordered the Claimant to file a transcript of the hearing before the judge.

On 3 March 2014 Judge Wulwik ordered that:

"Unless the Claimant by 4pm on the 17 ^th March 2014 files and serves a skeleton argument in support of the Appeal and lodges an Appeal Bundle, the Appeal shall be struck out and the Stay of Execution imposed by paragraph 3 of the order of the 11 ^th February 2014 shall be discharged without further order."

On 31 March 2014 Judge Wulwik, upon reading a letter from the Defendants' solicitors dated 19 March 2014, the court file and noting the terms of the order he made on 3 March 2014, and that the Claimant on 17 March 2014 filed a skeleton argument but failed to lodge an Appeal Bundle as required by the order of 3 March 2014 or otherwise in accordance with CPR PD 52B.6, ordered that:

"Pursuant to the Order of the 3 ^rd March 2014 the Appeal is now struck out and the stay of execution imposed by paragraph 3 of the Order of the 11 ^th February 2014 is discharged."

On 2 April 2014 the Claimant wrote a letter for the attention of Judge Wulwik, having received a notice of his Order of 31 March 2014, stating:

"This is extremely unfair and concerning when the appeal bundle was filed with the Court on the 31 ^st December 2013. The bundle consisted of the full papers in the Trial bundles."

The Claimant requested discharge of the order of 31 March 2014 without need of a formal application for relief of sanction.

On 3 April 2014 Judge Wulwik, through HM Courts and Tribunals Service, responded as follows:

"(a) The Court has no record of receiving an Appeal Bundle on the 31 ^st December 2013.

(b) Civil Procedure Rules Practice Direction 52B.6 at 6.4 deals with the contents of an Appeal Bundle. If the bundle that the Claimant says it filed on the 31 ^st December 2013 consisted only of the papers in the original trial bundle, it would not have complied with CPR PD 52B.6 at 6.4;

(c) The Appellant's Notice was put before His Honour Judge Wulwik immediately following his return from annual leave in February 2014;

(d) The Claimant must make such application to the Court as they think fit."

On 7 April 2014 the Claimant made an application for relief from sanctions.

The application was heard by HHJ Mitchell in the Central London County Court on 1 August 2014 when he dismissed the application.

On 21 August 2014 the Claimant filed a notice of appeal from the decision of Judge Mitchell.

The Civil Procedure Rules

CPR rule 3.9 provides:

" 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."

Practice Direction 53B – Appeals in the County Courts and High Court provides in Section 6 (Conduct of the appeal), so far as is material:

" 6.3 Appeal bundle: As soon as practicable, but in any event within 35 days of the filing of appellants notice, the appellant must file an appeal bundle which must contain only those documents relevant to the appeal. The appeal bundle must be paginated and indexed.

6.4 Documents relevant to the appeal:

(1) Subject to any order made by the court, the following documents must be included in the appeal bundle—

(a) a copy of the appellant's notice;

(b) a copy of any respondent's notice;

(c) a copy of any appellant's or respondent's skeleton argument;

(d) a copy of the order under appeal:

(e) a copy of the order of the lower court granting or refusing permission to appeal together with a copy of the judge's reasons, if any, for granting or refusing permission;

(f) a copy of any order allocating the case to a track;

(g) a transcript of the judgment of the lower court or other record of reasons (expect in appeals in cases which were allocated to the small claims track and subject to any order of the court).

(2) The following documents should also be considered for inclusion in the appeal bundle but should be included only where relevant to the appeal—

(a) statements of case;

(b) application notices;

(c) other orders made in the case;

(d) a chronology of relevant events;

(e) witness statements made in support of any application made in the appellant's notice;

(f) other witness statements;

(g) any other documents which any party considers would assist the appeal court.

6.5 Service of the appeal bundle: A copy of the appeal bundle must be served on each respondent—

(a) where permission to appeal was granted by the lower court, at the same time as filing the appeal bundle;

(b) where the appeal court has granted permission to appeal, as soon as practicable after notification and in any event within 14 days of the grant of permission;

(c) where the appeal court directs that the application for permission to appeal is to be heard on the same occasion as the appeal, as soon as practicable and in any event within 14 days after notification of the hearing date."

In Denton v TH White Ltd[2014] EWCA Civ 906, the Master of the Rolls and Vos LJ, in a joint judgment, stated at paragraph 24:

"… A judge should address an application for relief from sanctions in three stages. The first stage is to indentify and assess the seriousness and significance of the 'failure to comply with any rule, practice direction or court order' which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to...