Chadwick v Burling [2015] EWHC 1610 (Ch)

Appeal reference No CH/2014/0577[2015] EWHC 1610 (Ch)IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONHIGH COURT APPEAL CENTREON APPEAL FROM DEPURY REGISTRAR BROUGHAM QCVenue Royal Courts of Justice, Rolls BuildingLondon, EC4A 1NLDate 08/06/2015
Before
MR JUSTICE WARREN
Between
MATTHEW CHADWICKApplicant/LINDA BURLINGRespondent/
Tom Shepherd (instructed by SGH Martineau LLP) for Applicant/RespondentAlexander Hill-Smith (instructed by Thames Chambers) for Respondent/AppellantHearing Hearing date: 19 May 2015
JudgmentMr Justice Warren :Introduction
[1]This matter came before me on 12 May on an application for permission to appeal against a decision of Deputy Registrar Brougham QC (“the Deputy Registrar”). On that occasion, I gave an ex tempore judgment granting permission.[2]The applicant (and respondent to this appeal) in the underlying application, which was made on 9 January 2014, is Mr Matthew Chadwick. He is the trustee in bankruptcy of Mr Anthony Burling. Mr Chadwick’s application was for possession of two properties and for declarations that he was the beneficial owner, as to 100%, of the first, and as to five sixths of the second. They are 237 Rayleigh Road and 9 Selwood Road respectively. The respondents to Mr Chadwick’s application included Mr Burling and the appellant, Linda Burling (“Mrs Burling”). She is Mr Burling’s former wife.[3]On 12 March 2014, Deputy Registrar Briggs made an order for the filing of evidence. Mr Chadwick was to serve his evidence by 26 March 2014 and the respondents were to file theirs by 25 April 2014. The respondents did not file any evidence in accordance with that direction.

Registrar Barber’s order and non-compliance with it

[4]The matter came before Registrar Barber on 13 May 2014. Mr Chadwick was represented by counsel, Mr Shepherd, who appears also before me. Mr Burling attended the hearing but Mrs Burling did not. Registrar Barber made an order on 13 May which included the following at paragraphs 1 and 3:
“Unless the Respondents do file and serve written evidence in answer to the Application by 4pm on 5 August 2014 they shall be debarred from relying upon any such evidence without the permission of the court. The Application is adjourned to 6 October 2014 at 2pm for a further case management conference with costs management or a final disposal (as appropriate), with a time estimate of one hour.”
[5]As to her non-attendance at the hearing, Mrs Burling says this in paragraphs 8, 9 and 10 of her witness statement dated 11 March 2015: “8. My ex-husband told me about his bankruptcy but no more. 9. I knew there was a hearing in May 2014. I remember that notification of the hearing came through in five separate envelopes and I opened mine and saw that there was a hearing date set in May 2014. But I did not go because I did not know I had to. My ex-husband said he would go and that I did not need to go. I trusted him to attend on my behalf, I could not afford a solicitor. None of the children [also respondents] went either. 10. When he got back my ex-husband told me that the judge asked him at the hearing if anyone else had an interest in the properties and that was when Anthony said yes, that even though we were divorced I still had my share in the properties. I have never made any financial claim in the divorce, I did not know about such things”.[6]Mrs Burling did not file any evidence in accordance with Registrar Barber’s order. She says that she does not remember receiving the order or if she did, she did not understand its implications. She does not, however, positively assert that she did not receive it and I see no reason to think that it was not sent and delivered in the ordinary course. Be that as it may, something prompted her to write a letter to the Court, sending a copy to Mr Chadwick’s solicitors. It is a handwritten letter dated 25 July 2014 which attached a number of documents. There is a suggestion by Mr Hill-Smith, who appears on behalf of Mrs Burling, that this letter complied with the order of the Registrar Barber. However, nothing turns on this because the letter and its enclosures do not really assist Mrs Burling's underlying case. Nothing is said about 237 Rayleigh Road; and all that is said in relation to 9 Selwood Road is that she has borrowed money from her sister to keep on top of the mortgage (that is to say since her divorce and after Mr Burling’s bankruptcy) and that she had “contributed a lot of money over the past years” with no indication of how much or when or in what circumstances.[7]The letter arrived with Mr Chadwick’s solicitors on 14 August 2014. They replied on 27 August 2014. They referred to the order of Registrar Barber and said this:
“The letter you have sent me is not in the accepted form of written evidence which would usually be a witness statement, notwithstanding, please confirm whether the letter comprises the evidence upon which you intend to rely. The letter was effectively served on this firm on 14 August 2014 and is therefore outside the deadline ordered by the Court and is therefore automatically debarred from being treated as evidence. Please confirm whether you intend to apply to the Court to allow the letter to be accepted as evidence. We are instructed that if such an application is made our client would remain neutral.”
[8]This letter set out verbatim paragraph 1 of the order of Registrar Barber. It drew to Mrs Burling’s attention that her position was at risk and that she had to apply for permission if she wished to adduce the evidence. Mr Chadwick and his solicitors could have had no real idea from Mrs Burling’s letter of 25 July of the basis of Mrs Burling’s claim to an interest in 9 Selwood Road and no idea from that letter that she might be making any claim at all in relation to 237 Rayleigh Road. The only relevant material in relation to 237 Rayleigh Road in Mr Chadwick’s possession was a letter to him from Mrs Burling dated 8 August 2013 in which she stated that she contributed before her marriage £6,000 to the £9,500 purchase price and thus claimed to own more than 70% of the property; but even that is not supported by the evidence which she has now given in her witness statement of 8 January 2015 where she says that her father provided the deposit and paid for some of the materials needed for renovations with the rest of the money coming from Mr Burling’s and her own wages.[9]Mrs Burling did not file any evidence in accordance with Registrar Barber’s order or indeed at all prior to the hearing which took place on 6 October 2014 before the Deputy Registrar. Although Mrs Burling did produce some material (to which I will come) on that occasion, the Deputy Registrar refused to grant any relief from the sanction imposed by Registrar Barber and in so doing refused her request for further time to obtain legal assistance. This was so even though Mrs Burling told the Deputy Registrar that she had that day visited a firm of solicitors who were willing to help her.[10]It is necessary to say something about the course of that hearing. But before I do so, I wish to deal briefly with the law.

The Law

[11]An application for relief from sanction is made under CPR rule 3.9. Under that Rule, the court must 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” Applications should, in accordance with sub-rule (2), be supported by evidence. (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders”[12]This rule has been subject to some high profile cases. Denton v TH White Ltd [2014] EWCA Civ 906 lays out the process a judge has to follow on an application for relief from sanction. It is a three stage test. The first stage is to identify and assess the seriousness or significance of the failure to comply with any rule, practice direction or court order which engages rule 3.9(1). The second stage is to consider why the default occurred and whether there is any excuse for it. The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application, including factors (a) and (b) in CPR r.3.(1). These two factors are “of particular importance” and particular weight is to be given at the third stage when all the circumstances are considered to the need(a) for litigation to be conducted efficiently and at proportionate cost and(b) to enforce compliance with rules. Relevant factors at the third stage will include the promptness of the application and other past or current breaches of the rules, practice directions and court orders.[13]As a general rule, the fact that an individual is a litigant in person is not of itself a reason for the disapplication of the rules. This was the view expressed by Briggs LJ at [57] of his judgment in Nata Lee v Abid [2014] EWCA Civ 1652, a judgment with which Moore-Bick and Underhill LJJ agreed:
“…..In short, the CPR do not, at least at present, make specific or separate provision for litigants in person. There may be cases in which the fact that a party is a litigant in person has some consequence in the determination of applications for relief from sanctions, but this is likely to operate at the margins.”
[14]In Global Torch Ltd v Apex Global Management Ltd and others (No 2) [2014] 1 WLR 4495 the Supreme Court has endorsed the approach that in respect of a case management decision, “it would be inappropriate for an appellate court to reverse or otherwise interfere with it, unless it was ‘plainly wrong in the sense of being outside the generous ambit where reasonable decision-makers may disagree’ as Lewison LJ expressed it in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 at [51].”[15]At [29] to [31], Lord Neuberger considered whether the merits of the underlying claim were relevant to the grant of relief from sanctions. He expressed the view that the merits were generally irrelevant to such an application. The ultimate prospects were only relevant if it was a matter of summary judgement.

The hearing before the Deputy Registrar

[16]Mr Shepherd addressed the Deputy Registrar pointing out that Mrs Burling had not filed any evidence in spite of the letter from Mr Chadwick’s solicitors to which I have referred. He correctly explained that Mrs Burling would need to make an application for relief from sanctions but that none had been made. He noted that Mrs Burling had arrived with a carrier bag full of documents which he had not seen. Mrs Burling was then asked by the Deputy Registrar about the reasons for the absence of evidence. Mrs Burling gave an account of an accident and some ill-health and of the fact of her divorce. But that was all well before the time by which she should have filed her evidence and were not matters which could or should have formed any part of the circumstances which could be prayed in aid to justify the granting of relief from sanctions.[17]Having heard from Mrs Burling, the Deputy Registrar expressed the view that there was something serious to argue about in relation to 237 Rayleigh Road and was minded to grant relief from sanctions, particularly bearing in mind that she had by then solicitors on board; and in relation to 9 Selwood Road he thought it would be right to explore the position at the same time. This was not, of course, a decision and he invited Mr Shepherd to dissuade him from that course. Mr Shepherd, for his part, recognised that Mr Chadwick’s position concerning an extension of time for evidence had been neutral at the time of the August letter from his solicitors. But things had moved on. After being given an opportunity to seek further instructions, Mr Shepherd made submissions opposing the granting of relief from sanctions.[18]The relevant authorities (and in particular Denton) were not available in court, there having been no indication that an application for relief from sanctions might be made. Mr Shepherd was, however, clearly familiar with the cases and summarised the three stages required by Denton. He noted the importance of factors (a) and (b) in CPR rule 3.9(1) referring to their “particular prominence” rather than to their “particular importance” but I do not think anything turns on that.[19]He then made submissions concerning the first and second stages which, as will be seen, the Deputy Registrar accepted. He then submitted that the case fell down on those two hurdles and could not be saved at the third stage by consideration of all the circumstances of the case. He submitted that factors (a) and (b) both militated against the grant of relief. Thus: i). As to factor (a) (efficient conduct of litigation at proportionate cost), there had been “massive delays”. Further, Mrs Burling turned up at court at the last moment with documents on which she sought to rely. It was not a first hearing; not only were the orders of the court perfectly clear, the correspondence was very fair and had told Mrs Burling what she needed to do. Further delay meant further cost (cost being particularly significant since the prospects of recovery from Mrs Burling may be questionable). ii). I would add this in relation to factor (a): Mrs Burling’s case for the admission of new evidence, both before the Deputy Registrar and before me, rests on the proposition that she should have been given the opportunity to adduce the additional papers she had recently discovered and to present a case based on them. It is not, however, those papers which now form the basis of her case although some of them may form part of the story. Her real cases in relation to the two properties are these. First, in relation to 237 Rayleigh Road, her case depends on what was agreed with Mr Burling when it was transferred from their joint names to his sole name. It did not need documents found in a cupboard to explain that case; indeed, the documents do not assist. And yet she did not adduce that evidence until her witness statements in January and March 2015. Secondly, in relation to 9 Selwood Road, the primary case which she sought to raise in her amended Grounds of Appeal was based on an alleged agreement with Mr Burling in the context of their divorce. But that case is fatally flawed because any such agreement would have post-dated the bankruptcy and the appointment of the trustee: Mr Burling’s interest would already have vested in Mr Chadwick. The secondary case (insofar as it is possible to understand it at all) appears to be based, again, on some sort of agreement or understanding coupled with (unspecified) contributions to a mortgage. Again, it did not need documents found in a cupboard to explain that case, again the documents do not appear to assist and again she did adduce any evidence until her witness statements in 2015. iii). As to factor (b), Mr Shepherd says, to use my words, that the need to enforce compliance with orders is particularly stark in the present case. Mrs Burling was given a very generous period indeed, some 12 weeks, in which to produce her evidence. To have done nothing in that generous period militates strongly, he says, against any relief.[20]Mrs Burling was then given the opportunity to respond. She produced the carrier bag of documents to which I have already referred. These, however, if they were of any relevance at all, were relevant only to the merits of Mrs Burling’s underlying claim but, as Mr Shepherd submitted, they were not relevant to the application for relief from sanctions. What Mrs Burling said can be found at pages 24 and 25 of the transcript. In substance, she said that for some reason all the documents which she had found were in her mother-in-law’s wardrobe (in the house where they had lived together for many years until her mother-in-law’s death). She did not say that her mother-in-law had been dead for some years as was in fact the case; it cannot be that Mrs Burling had failed to look in the wardrobe previously because she thought it contained her mother-in-law’s property to which she had no access. She said that she had searched the house for documents but that it was only the day before the hearing that she found the documents in the wardrobe in a box which up to then she had though contained things like birthday and Christmas cards. Mrs Burling also referred to the letter dated 8 August 2013 regarding the contribution of £6,000 which I have mentioned already.[21]After further submissions from Mr Shepherd and a short response from Mrs Burling, the Deputy Registrar gave his judgment.[22]I have gone into the course of the hearing in some detail because it is necessary to understand what had been submitted to the Deputy Registrar in order to understand, in turn, what he actually said and in order to assess the criticisms which are made of his judgment, to which I now turn.

The Deputy Registrar’s judgment

[23]In paragraphs 1 and 2, the Deputy Registrar recited the procedural history, observing that Registrar Barber had given the very generous period of 12 weeks for Mrs Burling to provide her evidence. He set out the provisions of CPR 3.9, including the requirement for any application for relief from sanctions to be supported by evidence. As to the latter, he took no point on it and simply accepted Mrs Burling’s stated reasons for the delay without requiring evidence to be filed. He then referred, in paragraph 4, to Denton. I should set out the whole paragraph:
“That rule [i.e. CPR 3.9] had to be seen in the light of [Denton] which emphasises how the court should approach these questions. I have to approach the question in an order of considerations which we call (a), (b) and (c), although I may not get to (c). The first question is, is the breach serious or significant. There is no doubt it as. Way out of time to comply with the first order, let alone the second order, which is the unless order, a long time. In fact, really, the twenty third hour are you now seeking to put in evidence so there is not contest, if I can put it there, serious or significant.”
[24]That conclusion is clearly correct, if I may say so. I quote the paragraph only because of the observation “although I may not get to (c)” which might be taken to suggest that a conclusion has already been reached without the third step required by Denton having been undertaken.[25]In paragraph 5, the Deputy Registrar dealt with the second stage and asked himself whether there was a good reason for the breach. His focus was on the late discovery of the documents which Mrs Burling brought to the court. He regarded her search as wholly inadequate and as not providing an excuse for the failure to adduce further evidence. That was, in my view, a conclusion which he was entitled to reach in the context of the exercise of his discretion whether or not to grant relief from sanctions. His conclusion could only have been reinforced had he addressed the failure to adduce any evidence which did not depend on the contents of the documents, a matter which I have already covered in paragraph 19(ii) above. He concluded paragraph 5 by saying “So I also find there is no good reason for the breach”.[26]Then we come to paragraph 6: this opens with the words “I think, having got to that stage, I need not go any further, but may I just say this, it might be of some comfort to Mrs Burling”. I will come in a moment to what he did go on to say. But reading the opening sentence at face value he appears to be expressing a final conclusion based on his assessment of the first and second stages of the Denton test without contemplating that the third stage may demonstrate that, nonetheless, relief from sanctions should be granted. If that is what he did do, then he is guilty of an error of law. Mr Hill-Smith submits that this is precisely what he did do and that his refusal of relief is therefore flawed.[27]Mr Shepherd, on the other hand, says that the subsequent parts of the judgment show that the Deputy Registrar did embark upon the third stage and reached a conclusion which he could properly have reached. Indeed, he informed me – and this is supported by his email note to his instructing solicitors written shortly after the hearing and giving a report of it – that he interrupted the judgment to prompt the Deputy Registrar to deal with the third stage, something which the Deputy Registrar was not going to do.[28]What, then, did the Deputy Registrar address in relation to the third stage? The remainder of paragraph 6 deals with the Will of her mother-in-law which Mrs Burling had relied on as giving her an interest in 9 Selwood Road. It does no such thing, as the Deputy Registrar pointed out. Then, in the first sentence of paragraph 7, he referred to the presence in the carrier bag of a “number of documents which are reference to mortgage repayments but these mortgage repayments all seem quite recent and really will not make any difference at all to any questions of interest in the property”. He then said “So, if I am looking at all the circumstances of the case, I might be saying to myself, well, these are terribly important documents and they throw a completely different light on the whole thing and that might be something I would take into account but, in fact, I cannot even come to that conclusion.”[29]So, that is what he had to say about 9 Selwood Road. That might, I suppose, be of some comfort to Mrs Burling in this sense: even if the documents had all been allowed in by way of further evidence, Mrs Burling’s case would not, in fact, be assisted by them so that she will have lost nothing by the refusal to grant relief from sanctions. Since these considerations go only to the merits of the underlying claim, it might be said that they are not relevant to the question of relief from sanctions so that the refusal of relief was founded on an improper consideration. I would not agree with that. Test the matter this way: In seeking relief from an unless order in relation to the filing of evidence, the applicant can ordinarily be expected to indicate the scope, if not the detail, of the evidence which it is intended to adduce. If the evidence which it is sought to adduce does not support the applicant’s case, for instance because it is irrelevant, then no case for granting relief from sanctions is made out. There would be no point in granting relief from an order barring reliance on evidence when that evidence, if were adduced, would not support the applicant’s case. In the context of the present case, Mrs Burling ought, in seeking relief from sanctions on 6 October 2014, to have indicated to the Deputy Registrar the thrust of the evidence which she wished to adduce. All she in fact relied on was the content of the documents in the carrier bag and what it is that those documents were said to support. The documents in the carrier bag did not assist Mrs Burling’s case; that, at least, was the assessment of the Deputy Registrar and is one with which it is difficult not to agree. Accordingly, the materials which Mrs Burling showed to the Deputy Registrar did not lend any support to an application to grant relief from sanctions. This, in my view, would have been so even if, contrary to the facts as found by the Deputy Registrar, Mrs Burling had had a good excuse for not filing any evidence (for instance because she had been very seriously ill). There would have been no point in granting relief in order to adduce evidence which would have taken her case nowhere.[30]As to 237 Rayleigh Road, the Deputy Registrar acknowledged that there was one document which suggested that, at one stage, it was owned jointly by Mr and Mrs Burling. He was not sure how that took matters further because the main point was “Mrs Burling is not saying that she is an equal owner of the property, which one might infer from being in joint names, but that she owned a higher percentage because she contributed £6,000 but we have no evidence of that”. I am not sure how this would have been seen by Mrs Burling as any comfort. The point surely is that, if relief from sanctions had been granted, Mrs Burling might have put in evidence to substantiate her £6,000 contribution or, if not, to show, as her 2015 witness statements seek to show, why she retained at least some interest in the property. It is true, I accept, that the materials before the Deputy Registrar would not have been sufficient to establish an interest even if they had been admitted in evidence, but at least in relation to this property, 237 Rayleigh Road, there was some material to suggest that Mrs Burling might have a claim. The actual merit of that claim is not a relevant consideration at the third stage of the Denton test: if the case is one which would otherwise qualify for relief under the Denton test, then Mrs Burling should be given the opportunity to put in her evidence to support a claim based on a £6,000 contribution or on her previous joint ownership. This is entirely consonant with the Deputy Registrar’s initial inclination – before being addressed on Denton – to grant relief from sanctions: see paragraph 19 above.[31]In paragraph 8 of his judgment, the Deputy Registrar turned to more general considerations. He reminded himself of the firm attitude to be taken by the court, repeating the effect of factors (a) and (b) of CPR rule 3.9(1). He did not expressly address any other criteria which fell to be taken into account in assessing all the circumstances. Mr Shepherd submits that I should not be too analytical in my approach to the judgment. It was an ex tempore judgment in which the Deputy Registrar cannot be expected to have identified expressly each and every factor which he took into account, attributing appropriate weight to each such factor. However, given that Mr Shepherd felt it necessary to prompt the Deputy Registrar to move on to consider the third stage of the Denton test, and given the Deputy Registrar’s focus, in paragraph 7 of his judgment, on the merits of the claim in relation to 237 Rayleigh Road, I have no confidence that he took into account any factors other than those he expressly mentioned, that is to say factors (a) and (b). I do not think that his reference to “looking at all the circumstances” towards the end of paragraph 8 can be taken as anything other than a recognition of the requirement of CPR 3.9(1); it cannot be taken as a (self-fulfilling) statement that all relevant factors have been taken into account and irrelevant factors left out of account.

The arguments

[32]Mr Shepherd submits that the Deputy Registrar did not err in his approach. He applied the law correctly and his decision is unimpeachable. If that is wrong, then it is for me to re-exercise the discretion whether to grant relief from sanctions. He gives a list or reasons why I should refuse relief which I will deal with so far as necessary in due course.[33]Mr Hill-Smith says that the Deputy Registrar did err; he failed properly to engage with the third stage of the Denton test. He submits that the Deputy Registrar failed to pay proper regard to the proportionality of the sanction as it impinges on Mrs Burling as compared with the prejudice to Mr Chadwick in terms of delay and costs. [I interpose here to say that Mr Shepherd’s submission is that it is particularly important to adhere to the rules because Mr Chadwick is a trustee with statutory duties and obligations to creditors. To that I would respond that his duty is to administer the assets of the bankrupt and that it is not his duty to assert title to assets which do not in fact form part of the bankrupt’s estate.] Mr Hill-Smith criticises the Deputy Registrar for failing to give any detailed consideration of factors (a) and (b). He failed to take account of the fact that Mrs Burling had instructed solicitors and was engaging in the process in a spirit of co-operation and that she would have been able to produce her evidence in the next 7 days. He failed to take account of the fact that Mr Chadwick’s solicitors had expressed a position of neutrality only for Mrs Burling to find herself faced at the hearing with opposition to relief from sanctions. He failed to take account of the serious consequences for Mrs Burling of the dismissal of the claim. Mr Hill-Smith accepts that delay has been caused, but submits that it would not (apart from this appeal) be significant. Had Mrs Burling filed all of the evidence on which she now seeks to rely in accordance with the order of Registrar Barber, the hearing on 6 October 2014 would have been simply a directions hearing. There would have been no significant delay as compared with that if Mrs Burling had been given leave to adduce further evidence within a short period after 6 October 2014. The Deputy Registrar failed to take into account that Mrs Burling was not only a litigant in person but one totally ignorant of the procedure and what she should do. Although litigants in person must observe the rules, the fact that an individual is a litigant in person can be taken account of “at the margins” (as to which see Nata Lee at paragraph 13 above). Where the consequences are as devastating as they are in the present case for Mrs Burling, the margin should be as wide as is consistent with principle. Conclusions (1). Relief from sanctions[34]I deal with 237 Rayleigh Road and 9 Selwood Road separately. 237 Rayleigh Road[35]As to 237 Rayleigh Road, I am persuaded that the judgment of the Deputy Registrar displays an error of principle. I put it that way, rather than saying that he actually erred in principle, because he may in fact have had in mind all of the factors which should have been taken into account but simply failed to address all of the relevant factors in his judgment. It seems to me that there is force in Mr Hill-Smith’s submissions about what the Deputy Registrar should have, but did not expressly, take into account. That, coupled with his conclusions concerning the alleged contribution of £6,000 and his implicit rejection of any possible reliance on the pre-existing joint ownership lead, in my judgment, to the conclusion that he did not properly exercise his discretion. He appears to have taken the merits into account as part of “all of the circumstances of the case” when, for reasons already given, he should not have done so: see paragraph 30 above.[36]I can, in these circumstances, exercise the discretion myself (although in theory I could remit the matter but that would be unsatisfactory for a number of reasons). Mr Hill-Smith submits that I should grant relief from sanctions and allow Mrs Burling to adduce further evidence about her claim to a share in 237 Rayleigh Road. The factors on which he relies are essentially the same factors which the Deputy Registrar did not expressly address which I have already mentioned: see paragraph 30 above. Further, he says that factors (a) and (b) in CPR 3.9(1) do not militate against relief being granted: see paragraph 33 above. Further, whilst accepting that the discipline of compliance with the rules is important, to grant relief in the circumstances of the present case, with a litigant in person ignorant (I use his word) of what was to be expected of her and lacking in understanding of the whole process, would not send any sort of message to litigants in general and their advisers that the court is willing to be lax in its requirement of compliance with the rules and thereby signal a return to the approach which the Jackson reforms were designed to change.[37]If he is right that I should grant relief at all, then I would agree that Mrs Burling should have a final opportunity to produce her evidence, including evidence from Mr Burling. In that context, I understand that a witness statement was made by him for the last hearing before me but in the event no application was made to adduce it. But if this matter is to proceed to a substantive hearing it would not be sensible, in my view, to restrict Mrs Burling to the evidence which she has already produced, namely her own two witness statements and the statement of her friend Susan Carroll.[38]Mr Shepherd submits that the only proper conclusion which I can reach is to refuse relief. He made a number of points: i). The application for relief was not made promptly. Indeed, no application was made until the oral application on 6 October 2014 notwithstanding the letter dated 27 August 2014 from Mr Chadwick’s solicitors mentioned at paragraph 7 above. ii). At best, the application was made 2 months late at the hearing when, in relation to 237 Rayleigh Road, Mrs Burling explained that “I have a letter here saying I was on the mortgage” and asked for a week for her solicitors to write everything out for her. iii). There was a breach of the previous order of Deputy Registrar Briggs as well as breach of Registrar Barber’s order. Although that is true, the comments in Denton about breaches of other orders being taken into account are really directed at compliance generally with the rules. In nearly all cases of non-compliance with “unless” orders (in contrast with an automatic sanction laid down in the rules themselves) there will have been a prior order without any sanction attached. It does not really add anything in terms of the grant of relief to point out the breach of the “unless” order was preceded by a breach of a similar order without a sanction attached. iv). As pointed out at [44] of Denton, “the culture of compliance that the new rules are intended to promote requires that judges ensure that the directions that they give are realistic and achievable. It is no use imposing a tight timetable that can be seen at the outset to be unattainable. The court must have regard to the realities of litigation in making orders in the first place….. "Unless" orders should be reserved for situations in which they are truly required: these are usually so as to enable the litigation to proceed efficiently and at proportionate cost”. Clearly, Registrar Barber saw her order as truly required and provided a generous timetable to ensure that it was realistic and achievable. v). It is only at the margins that the fact that an individual is a litigant in person is relevant. On the facts of the present case, Mr Shepherd submits that it is irrelevant. First, the orders of both Deputy Registrar Briggs and Registrar Barber were not complicated and were clear. Secondly, the letter of 27 August 2014 to Mrs Burling from Mr Chadwick’s solicitors alerted Mrs Burling to the need for her to take action by making an application supported by a witness statement. vi). The merits of the claim are irrelevant. I agree with that, subject to the qualification that the merits may be important, or even conclusive, when the merits are clear in one direction or the other such as to justify summary judgment. That is not the present case in relation to 237 Rayleigh Road. vii). Mrs Burling’s personal circumstances concerning her health and her divorce are not relevant because of the timing. Her accident and other health problem predated Mr Chadwick’s application and she had recovered sufficiently to manage her affairs within the time-table laid down by the orders of Deputy Registrar Briggs and, a fortiori, those of Registrar Barber. viii). The fact that Mrs Burling will lose the opportunity to make good her claim if relief is not granted is irrelevant. That is simply a consequence of the breach of the “unless” order. It is true that it is simply a consequence of the breach, but that is not to say that it is not properly a factor to be taken into account. The court might be more reluctant to grant relief where the sanction is deprivation of some collateral advantage (as in Mitchell where Mr Mitchell was deprived of the possibility of recovering costs even if successful but could still prosecute his claim) than where the sanction is deprivation of a significant property right. ix). Contrary to Mr Hill-Smith’s argument, Mr Shepherd submits that there would be serious consequences if relief from sanctions was granted. Firstly, there would be more delay. I have already addressed Mr Hill-Smith’s position on this aspect at paragraph 33 above. Mr Shepherd suggests that the hearing on 6 October 2014 could have been used to deal with the whole case even if Mrs Burling had produced her evidence in time. I think that that is unlikely. Secondly, the breach of Registrar Barber’s order has resulted in increased costs quite apart from this appeal. These increased costs will in practice be irrecoverable resulting in the creditors being out of pocket. There can be no doubt that some increased cost will have been incurred as a result of Mrs Burling’s default. But if the costs of this appeal are left out of account, it is not obvious to me that a significant amount of extra cost will have been incurred.[39]Mr Shepherd asks what, in the light of all of the submissions on both sides, are the circumstances which tip the balance in favour of granting relief. The answer he gives to his own question is that Mrs Burling became co-operative, appointing solicitors to guide her, and indicated that a witness statement could be produced within 7 days. He submits that there is no other factor. I do not consider that that assessment does justice to Mr Hill-Smith’s points.[40]First, Mr Shepherd’s assessment of the impact of factors (a) and (b) in CPR 3.9(1) is stronger than I consider is justified. Although I accept that Mrs Burling’s conduct has not been consistent with the efficient conduct of the litigation, the result in terms of delay (ignoring the delay caused by this appeal) is not likely to have been great given that the 6 October 2014 hearing was, in my assessment, unlikely to have been the occasion for the final disposition of the case had Mrs Burling filed her evidence in time. And although I accept that a litigant in person as much as a represented litigant must observe the rules and orders of the court, this is not a case where to grant relief from sanctions would send the wrong message to litigants in general. Although factors (a) and (b) are, in accordance with Denton, of particular importance, their impact must be viewed against the facts of the particular case as indeed they were in Denton and the other appeals (Decadent and Utilise) heard at the same time.[41]Secondly, one cannot discount entirely the factors which Mr Shepherd identifies in answering his own question. But it seems to me to carry very little weight that Mrs Burling, at the last moment and well out of time for compliance with the “unless” order, sought legal assistance. As Mr Shepherd points out, the orders of Deputy Registrar Briggs and Registrar Barber are not difficult to understand. And as I have noted, the discovery of documents in the cupboard may have prompted Mrs Burling to act. But suppose that she had not found the documents in the cupboard but had simply sought, way out of time, to adduce evidence about the joint ownership and transfer of the property. The question would then obviously arise as to why she had not adduced this evidence before. There is simply no explanation. She has not said, for instance, that she thought that evidence only meant documentary evidence and did not include her own account of the joint ownership and the transfer of the property. It is no answer to the failure to adduce that evidence to say that documents have now been found in a cupboard: that may have prompted Mrs Burling into action, but it does not provide an excuse for previous inaction.[42]It seems to me that the only potential answer to this is that Mrs Burling is not simply a litigant in person but is also an individual who is ignorant of the system and how she is supposed to operate within it. It cannot be right, however, that the court must enquire into the state of knowledge and intellectual capacity of a litigant in person who says that he or she did not understand the process or realise that he or she had certain substantive rights (and so did not serve evidence to support a claim to those rights) (although there may be cases where it is obvious on the facts that this is so and can be taken into account). Although the fact that an individual is a litigant in person can be a relevant factor, this, I agree, is only at the margins; typically this might be so where there is some extremely complex factor or complicated order which any lay person might find it difficult to understand. In the present case, as I have said, the relevant orders were straightforward and easy to understand. Moreover, Mr Chadwick’s solicitors explained to Mrs Burling the need for her to make an application supported by evidence if she was to be allowed to adduce any evidence.[43]Taking account of all the circumstances as I have identified them and in the light of the submissions addressed to me, my decision is that relief from the sanction imposed by Registrar Barber should not be granted in relation to 237 Rayleigh Road. 9 Selwood Road[44]As to 9 Selwood Road, I am not persuaded that the judgment of the Deputy Registrar displays any error of principle. On the material before him, it was well within the range of appropriate decisions for him to conclude that, applying the third stage of the Denton test, in all the circumstances relief from sanctions should not be granted. He was entitled to take account, as I have explained, of the merits of Mrs Burling’s claim because the case was one where, even if the evidence on which Mrs Burling sought to rely had been admitted, it would not have assisted her case; and he was entitled to reach that conclusion even if the case would otherwise be one where relief from sanctions ought to be granted: see paragraph 29 above. Even if the Deputy Registrar should have taken into account other factors which he did not, at least expressly, take into account, I consider that, applying the correct approach, he could only properly have come to the conclusion which he did come to. Once it is accepted, as it must be, that Mrs Burling’s case for relief from sanctions in relation to 9 Selwood Road rested exclusively on the documents in the carrier bag, and in particular the will, it follows that if those documents provide no arguable case then the application for relief should fail. I would therefore dismiss Mrs Burling’s appeal from the Deputy Registrar’s decision to refuse relief from sanctions in relation to 9 Selwood Road. (2). Refusal to adjourn[45]So far as the refusal to adjourn the hearing on 6 October 2014 to allow Mrs Burling to obtain further advice is concerned, I reject any suggestion that the Deputy Registrar erred. She had plenty of time from the date of Registrar Barber’s order in which to obtain advice and even longer from the date of Deputy Registrar Briggs order which was when she ought to have given serious consideration to the preparation of her evidence. (3). Declarations[46]The declarations made by the Deputy Registrar in relation to both 237 Rayleigh Road 9 Selwood Road stand. I will deal with the date for the granting of permission following the handing down of this judgment.

Application to amend the notice of appeal

[47]Since I have refused the appeal against the refusal of relief from sanctions in relation to 9 Selwood Road, the application to amend the Notice of Appeal in relation to that property falls away. Nonetheless, I wish to say that, had I decided that relief from sanctions should be granted in relation to 9 Selwood Road, I would have refused permission to amend the Notice of Appeal. The amendment does not seek to add to or amend an existing ground of appeal in relation to a particular order appealed against. Rather, it seeks to add an entirely new ground of appeal in relation to a part of the order not yet appealed against, namely to assert a beneficial interest in 9 Selwood Road. This is a claim which was expressly disavowed in the skeleton argument (prepared by experienced insolvency counsel who did not appear before me) in support of the Grounds of Appeal. The application to amend was not made until22 December 2014. That was far too late, in my judgment, to seek to raise an entirely new ground of appeal when no new material over and above that which Mrs Burling discovered just before the hearing on 6 October 2014 had come to light. The point does not arise for decision and so I make only those brief observations in relation to the application.

Disposition

[48]Mrs Burling’s appeal against the refusal of relief from sanctions is allowed in relation to 237 Rayleigh Road but is dismissed in relation to 9 Selwood Road.[49]In the exercise of my discretion, I refuse to grant relief from sanctions in relation to 237 Rayleigh Road.[50]The declarations as to beneficial ownership made by the Deputy Registrar in relation to both 237 Rayleigh Road and 9 Selwood Road stand. My refusal to grant relief from sanctions in relation to 237 Rayleigh Road means that the Deputy Registrar in fact determined the ownership of that property on the correct basis.

Cited in 1 later judgment