“The first defendant [that is the appellant] is debarred from defending unless by 4 pm 14 days after the service of this order she files and serves a disclosure list. The aforesaid disclosure list is specifically to include bank statements (or other documents) showing payments made to the second defendant for rent and expenses in the sum of£500 per month during the period of1 July 2012 to31 January 2013 .”
“It is not part of the current exercise to decide whether or not the first defendant had a good excuse for failing to comply. The issue is solely whether she did comply. She did not comply. The sanction therefore takes effect and she is debarred from defending this claim.”
“This hearing has been listed for some time. It is argued by Mr Grigg on behalf of the first defendant that a statement filed by the first defendant solicitor on 2 May amounts to an application for relief from sanction. It is not. An application has to be issued formally underCPR 23 . It may be that that statement could stand as evidence in that application, but it cannot constitute an application in itself. I express no view as to whether or not any application for relief from sanction would succeed, but I note that any application for relief has to be made promptly. In the current circumstances, I have no discretion. I am required merely to find whether or not there had been compliance with the order. The first defendant is debarred from defending and I shall proceed to hear the claim of possession.”
“There is no application before me for relief from sanction. It would only be on such an application that I would have a discretion to grant relief, and at that stage there would be a need to investigate the [merits].”
“I am content to assume, for present purposes, that in granting an extension of time in the circumstances of the instant case Judge Reid was granting relief from the sanction imposed by his earlier order within the meaning of Rule 3.8. However, even on that assumption, I am wholly unable to accept Mr Mallet's submission that the court's general case management powers (a) to extend time (see Rule 3.1(2)(a)) and (b) to act on its own initiative (see Rule 3.3(1)), are cut down by Rule 3.8(1), with the consequence that the court is powerless (that is to say has no jurisdiction) to extend time in circumstances such as those of the instant case unless and until an application for relief under Rule 3.8 is made by the party in default. Indeed, I would regard such an interpretation of a CPR as perverse and as flying in the face of the overriding objective of dealing with cases justly.”
“In my judgment, Mr Mallet has put the cart before the horse. It is Rule 3.8(1) which takes effect, subject to the court's general case management powers in Rule 3.1(2)(a) and Rule 3.3(1), rather than the other way around. I can think of no sensible reason why, in the circumstances such as those of the instant case, the court should be deprived of jurisdiction to exercise those powers by extending time or otherwise granting relief from a sanction, unless and until the party who would otherwise be in default applies for relief under Rule 3.8. The words “has effect” in Rule 3.8 mean, in my judgment, no more than that, absent any exercise by the court of its general case management powers in extending time or otherwise granting relief from the sanction, the sanction will remain in effect until relief from it is granted by the court on an application made under Rule 3.8 by the party in default.”
“The scheme of the Rules relating to conditional orders is in my view both clear and salutary in its effect, namely, that such orders mean what they say, that the consequences of non-compliance take effect in accordance with the terms of the order, but that the court has ample power to do justice under rule 3.8 on the application of the party in default, or, in an exceptional case, acting on its own initiative.”
“Keen Philips v Field was a very unusual case. The only question for decision was whether the court had jurisdiction to grant relief from sanctions under rule 3.8 in the absence of an application by the party in default. This court held that despite the wording of rule 3.8, which naturally assumes that the party in default will make an application for relief, the court has jurisdiction to act of its own initiative in an appropriate case. However, the jurisdiction is one which is likely to be exercised only rarely because it will usually be necessary for evidence to be placed before the court to enable it to consider the various matters to which rule 3.9 refers. In that case, however, there was no dispute relating to the manner in which the judge had exercised his discretion, and rightly so, because it was accepted that the claimant's failure to comply with the order had resulted from matters wholly outside its control, had caused no prejudice of any kind to the defendant and had had no adverse effect on the course of the proceedings.”