North Midland Construction Plc v Geo Networks Ltd [2015] EWHC 2384 (TCC)

[2015] EWHC 2384 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Rolls Building, 7 Rolls BuildingsDate 7 August 2015
London EC4A 1NL
Before
MR. JUSTICE EDWARDS-STUART
Between
North Midland Construction plcClaimantGeo Networks LtdDefendant
Mr Jonathan Acton Davis QC and Miss Felicity Dynes (instructed by Browne Jacobson LLP) for ClaimantMr Justin Mort QC (instructed by DLA Piper UK LLP) for Defendant
JudgmentMr. Justice Edwards-Stuart:Introduction
[1]Before the court there are two applications by the Defendant. They are to strike out the claims made by the Claimant in Claim No HT-2014-000045 and claim number HT-2015-000036 for failure to serve Particulars of Claim by the required date. The former action is known as the Project Yellow claim, and the latter as the Fibrespeed claim. In each case there is a corresponding application by the Claimant for an extension of time.[2]In the Project Yellow claim, Particulars of Claim were due to be served by 30 June 2015 following a consent order agreed by the parties on 31 March 2015. In the Fibrespeed claim, Particulars of Claim were due to be served by 2 June 2015, being four months after the date of issue of the Claim Form. However, the Defendant's application in the Fibrespeed claim asks that the Claimant be granted relief from sanction for failing to serve Particulars of Claim by 30 June 2015. This is because the application was based on the assumption that the Defendant also had an extension of time for serving the Particulars of Claim in the Fibrespeed action to that date.[3]In the Project Yellow the Claimant agreed to insert cabling into about 830 km of ductwork between Manchester, Bradford, Glasgow and Edinburgh. Following an adjudication that was conducted in April and May 2013 the parties engaged in pre-action protocol correspondence during the latter part of 2013. The Claim Form was issued on 17 July 2014. There was an agreed stay of the proceedings in order to allow the parties to mediate which expired on 3 November 2014. Time for service of the Particulars of Claim was subsequently extended to 16 January 2015, and then again to 30 June 2015.[4]The Fibrespeed Project involved a similar contract to install cabling in and around North Wales. There is a separate but related action, brought by the Defendant against the Claimant, in relation to defects in the reinstatement of the highways in North Wales. The Claim Form in the Fibrespeed claim was issued on 2 February 2015. It was not preceded by a pre-action protocol letter. The latest date for service of Particulars of Claim was therefore 2 June 2015 in the absence of any agreement to extend it.[5]As I shall explain in more detail below, there was a dispute between the parties as to whether or not time for service of the Particulars of Claim in the Fibrespeed claim had also been extended to 30 June 2015.[6]In the event, Particulars of Claim in the Project Yellow claim were served on 20 July 2015, a little over two weeks after they were due. In the Fibrespeed claim the Particulars of Claim have not been served. The Claimant seeks an extension of time until at least 31 August 2015 in which to do so.[7]The Claimant was represented by Mr Jonathan Acton Davis QC and Miss Felicity Dynes, instructed by Browne Jacobson LLP, and the Defendant was represented by Mr Justin Mort QC, instructed by DLA Piper UK LLP.

The application of the relevant principles

[8]Both counsel agreed that in approaching these applications I should follow the three stage approach set out by the Court of Appeal in Denton v White [2014] EWCA Civ 906. Although there is no sanction provided either by the rules or - in the case of the Project Yellow claim - the relevant consent order, these applications were made after the time for compliance with the rule or the order had expired and so were made “out of time”. In the circumstances it was common ground that the Claimant's applications should be treated as applications for relief from sanctions.[9]As a preliminary matter, it is necessary to decide by what date Particulars of Claim were due in the Fibrespeed claim. If there was no extension of time, they were due by 2 June 2015. I am quite satisfied that there was no consent by the Defendant to any extension of time for service of Particulars of Claim in the Fibrespeed claim. My reasons are these.[10]It is said on behalf of the Claimant that the Defendant's solicitors, DLA Piper, were aware that the Claimant had started the Fibrespeed action, HT-2015-000036. The Claimant relies on a fairly long e-mail from Mr Westlake, a partner in Browne Jacobson's Nottingham office, dated 31 March 2015 to Miss Rosemary Jackson QC, asking if she would be prepared to act as a mediator. In the course of that e-mail Mr Westlake referred to the fact that the Claimant had issued proceedings in the TCC on “2 February 2015 (HT-2015-0036)”. That e-mail was copied to both Mr Connell and Suzannah Newboult at DLA Piper. It prompted an e-mail from Ms Newboult, who appears to have been in Dubai,1 timed at 13:31 on 1 April 2015, asking about action HT-2015-0036 because “We [DLA Piper] have not . . . been served with these proceedings”. This e-mail was copied to Mr Connell.[11]By an e-mail in response, at 16:32 hours the same day, 1 April 2015, also copied to Mr Connell, Mr Westlake said that the proceedings had been issued on 2 February 2015 and would be served within the prescribed 4 month period.[12]Against the background of this exchange of e-mails it is not, in my view, possible to draw the inference for which the Claimant contends. Indeed, I consider that the contrary was the case. At the time when the consent order in the Project Yellow claim dated 31 March 2015 was signed by the Defendant's solicitors it seems likely that the person who signed it, Mr Connell, an associate solicitor at DLA Piper, had no knowledge of the proceedings with the claim number HT-2015-000036. This is because in his e-mail dated 1 April 2015, timed at 10:11 hours, he queried the case number (HT-2015-0036) quoted in the subject line of the e-mail, and which was also on the draft order, saying “I presume that this is a number from an unrelated matter”. His presumption was not corrected: Mr Westlake's reply, at 10:20, was simply:
“Yes please change to HT-14-45”
. This Mr Connell did.[13]In my view, the only reasonable inference from this is that when Mr Connell sent his e-mail of 10:11 he had either not received or not read (or not read carefully enough) Mr Westlake's e-mail to Miss Jackson of the previous day. The subsequent exchange of e-mails between Ms Newboult and Mr Westlake on 1 April 2015, which made the existence of the second action clear, took place later that day. The point has been made that care must be taken when looking at the times of e-mails because some of the relevant fee earners were in Dubai, although in this particular case it seems that Mr Connell was working from DLA Piper's office in Sheffield.2[14]The letter from DLA Piper returning the consent order in HT-2014-000045 (the Project Yellow claim), at that stage signed on behalf of the Defendant only, was sent by e-mail on 1 April 2015, at 10:37 hours, and therefore prior to the exchange of e-mails to which I have just referred which mentioned the issue of the claim form in the Fibrespeed action.[15]On 2 April 2015 Browne Jacobson wrote to the TCC Registry enclosing the consent order in HT-2014-000045 which it had then signed also. The title of the letter referred, correctly, to that claim number. However in that letter Browne Jacobson said:
“This is a matter where we will be serving the actual Claim Form shortly, but as work is ongoing in relation to the Particulars of Claim, we have enclosed three copies of the requisite Consent Order.”
In a letter dated 5 April 2015 DLA Piper questioned this statement. They pointed out that the claim form had been served in August 2014 and that DLA Piper had filed its acknowledgement of service about two weeks later.[16]In response to this, Mr Westlake, appearing to misunderstand the question, replied:
“Claim 0045 relates to Project Yellow and 0036 relates to Fibrespeed.”
If there was a reply to this, it is not in the application bundle.[17]On 8 April 2015 Browne Jacobson wrote to the TCC in relation to claim HT-2015-000036 as follows:
“Further to our previous letter (copy attached) please find enclosed the amended order with the correct claim number. If you have any queries please do not hesitate to contact me.”
If you have any queries please do not hesitate to contact me.” Attachments to the letter included three copies of the consent order that DLA Piper had signed in claim HT-2015-000045, but which had been signed again by Browne Jacobson (although again dated 31 March 2015), with the old claim number crossed out and “HT-2015-0036” inserted. Browne Jacobson's reference 0261100099 was substituted for the reference 0261100093 (which related to HT-2014-000045) on the back sheet of the original order.[18]Unlike Browne Jacobson's letter to the court of 2 April 2015, this letter was not copied to DLA Piper and it did not record that the court fee was enclosed, as the previous letter had done. No trace of this letter, or payment of a second fee or the orders themselves have been found in the court records.[19]On 14 April 2015 Akenhead J signed and re-dated the order that had been sent on 2 April 2015 in claim HT-2014-000045. The order was sealed on 29 April 2015.[20]In a third witness statement by Mr Westlake, but wrongly described as his second witness statement, made on 20 July 2015, he explained the circumstances surrounding the letter to the court of 8 April 2015. At paragraphs 4.4 to 4.8 he said this:
“4.4. On 2 April 2015 - I sent to the Court this Consent Order dated 31 March 2015 with reference “HT-14-45”, which I had countersigned. 4.5. On 7 April 2015 - I received the hard copy of the DLA Piper letter dated 1 April 2015 marked by my firm's post department in manuscript “7/4”
. It is my manuscript change to the claim number in the top right hand corner from the case number “HT-2014-45” to case number “HT-2015-36”. The reason being that a Consent Order for HT-2014-45 had already been sent to the Court on 2 April 2015 (see paragraph 4.4 above) 4.6. On 8 April 2015 - I sent to the Court a further copy of my 2 April 2015 letter with enclosures and also attaching a revised Consent Order dated 31 March 2015 signed by both parties. I do not know why my letter was not copied to DLA Piper LLP. This was certainly not a conscious or deliberate omission, but can only be explained as an inadvertent oversight 4.7. On 29 April 2015, I sent an e-mail timed at 21:00 to DLA Piper LLP. The e-mail is marked “without prejudice” and without piercing this privilege, I would like to set out an extract, which confirms that we were awaiting a copy of the sealed Consent Order on HT-2015-36:
“On the NMC claim no HT-2015-0036 relating to the final account they have already engaged Driver Trett a report being due to enable Particulars of Claim to be served by 30 June 2015 in accordance with Consent Order 31 March 2015 (sealed copy still awaited from the TCC).”
Therefore DLA Piper LLP were aware I had sent a Consent Order on HT-2015-00036 (Project Yellow) to the Court” “On the NMC claim no HT-2015-0036 relating to the final account they have already engaged Driver Trett a report being due to enable Particulars of Claim to be served by 30 June 2015 in accordance with Consent Order 31 March 2015 (sealed copy still awaited from the TCC).” Therefore DLA Piper LLP were aware I had sent a Consent Order on HT-2015-00036 (Project Yellow) to the Court”[21]Several points immediately stand out from these paragraphs:(i) Although Mr Westlake had already sent the consent order, signed by both parties, in HT-2014-000045 to the court on 2 April 2015, he used precisely the same document that he first received by e-mail on 1 April 2015 (signed by DLA only) to create a second consent order in HT-2015-000036.(ii) His stated reason for doing so was that a consent order in HT-2014-000045 had already been sent to the court.(iii) He does not say there, or anywhere else in his witness statement, that he believed that DLA had consented to a second consent order in HT-2015-000036.(iv) He did not tell the court that he was sending an additional[22]In a brief witness statement in response, Mr Simon Palmer, the partner in DLA Piper supervising the case, said that his firm was only ever asked to agree an extension of time in HT-2014-000045 and that was the only extension of time that was agreed.[23]In addition, he cites an extract of an e-mail from Ms Newboult to Mr Westlake in response to the without prejudice e-mail from Browne Jacobson of 29 April 2015 (the extract from which is quoted at paragraph 4.7 of Mr Westlake's witness statement), in which Ms Newboult said:
“5. The Consent Order for which the sealed copy is awaited from the court pertains to Claim no HT-2014-45. This is not relevant to any of the matters contained within our letter of yesterday.”
[24]This appears to be directly contrary to Mr Westlake's assertion that DLA Piper was aware of the fact that a consent order in HT-2015-000036 had been filed with the court. I am in no doubt whatever that DLA Piper had absolutely no idea that a further consent order in HT-2015-000036 bearing their signature had been sent to the court. I find it surprising that Mr Westlake did not refer to Ms Newboult's observation in his witness statement, although I accept that it may have been prepared in a hurry and that he overlooked it.[25]I made it clear to counsel representing the Claimant, who, I should point out, had never suggested in his skeleton argument that an extension of time had been agreed in HT-2015-000036, that I was very troubled about the contents of Mr Westlake's third witness statement. On one view it looked as if there may have been a deliberate attempt to mislead both the court and the Defendant and, indeed, there was the further possibility that the letter of 8 April 2015 had never been sent to the court at all.[26]I therefore indicated that I was prepared to give Mr Westlake the opportunity to make a full and candid explanation of the circumstances in which the letter of 8 April 2015 came to be sent to the court (if indeed it was sent) before I made any findings of fact about it. In addition, I made clear that the circumstances might be such that I would have to make a report to the appropriate authority.

Mr Westlake's fourth witness statement

[27]This statement, dated 23 July 2015 (but incorrectly described as his third witness statement), was filed and served in accordance with my direction. I have to say I find the account given by Mr Westlake to be thoroughly unsatisfactory. At paragraph 9 of the witness statement he says that “for some inexplicable reason” he thought that the consent order that had been sent to the court on 2 April 2015 related to Fibrespeed. He then said this:
“I thought (wrongly) that the claim number on the signed copy was incorrect and therefore made the manuscript amendment so that the case number read HT-2015-000045.”
[28]Yet again, Mr Westlake has mixed up the case numbers: indeed, on this occasion he has referred to a non-existent case number. It appears that he meant HT-2015-000036. More fundamentally, this is consistent only with him seeking to correct what he thought (wrongly) was an error in the consent order, namely that it related to the wrong claim. It is quite inconsistent with an intention to lodge a second consent order in the Fibrespeed action. If he had wished to do that, one would have expected him to do it in unequivocal terms and to send a further fee, but he did not instruct his secretary to do either of these things. His instruction to her was this:
“Sophie my error this should be TCC 0036 not 0045 which is Yellow so need to tell the TCC wrong no.”
[29]That is not an instruction to send a second consent order. In these circumstances, what I find very difficult to understand is how Mr Westlake made the mental leap from having lodged a consent order in one action (whichever one he thought it was), which he then subsequently amended, to a state of affairs in which he thought that two consent orders had been lodged, one in each action.[30]Whilst Mr Westlake now accepts that he was labouring under the misapprehension that there was an extension of time for service of the Particulars of claim in both actions, this was not something that he was prepared to acknowledge when he made his (third, but wrongly titled second) witness statement dated 20 July 2015. In that witness statement he purported to “clarify the position regarding the Consent Orders dated 31 March 2015”. I have already mentioned the curious explanation that he gave for sending a second “consent order” to the court - which, incidentally, is now contradicted by his fourth witness statement - but that explanation contained no acknowledgement that there might have been any mistake on his part. His position was that there were two separate consent orders and, further, that DLA Piper should have known that that was the case.[31]I now turn to the application of the Denton principles to each of these applications.

Claim No HT-2014-000045 (The Project Yellow)

[32]In relation to the cause of delay, what Mr Westlake says in his second witness statement is that the experts' investigations and reports were “taking longer than anticipated”. In October 2014, the current consultants, Driver Trett, were instructed to conclude the Claimant's statement of account, and to support it with full documentation. In addition, they were instructed to provide a report on delay and disruption. Mr Westlake says that it was not until June 2015 that they provided preliminary reports on both aspects. He says that they had to review some 70 lever arch files and 28 GB of electronic data. However, it seems that junior counsel had drafted preliminary particulars of claim in December 2014. He referred to various meetings that were arranged during June and July 2015 and that the intention was to file and serve the Particulars of Claim before the end of July 2015. A few paragraphs later this date became 20 July 2015.[33]In fact, the Particulars of Claim were served on 17 July 2015, with a statement of truth signed by Mr Westlake. This is a little surprising since that is also the date on which he signed his first witness statement, in which he referred to the intention to serve the Particulars of Claim by the end of July. I find it curious also that it is said that the revised draft Particulars of Claim prepared by junior counsel on 25 June 2015 ran to 56 pages, whereas the Particulars of Claim served on 17 July 2015 runs to only 36 pages. However, there may be a perfectly good explanation for that.[34]I have to say that I do not find this evidence very convincing. It is not really apparent why it should have required much more than six months to produce the information required for the Particulars of Claim.[35]The delay has not had any very significant consequences, but it has meant that the Defendant will have to consider the pleading in September and October, instead of June and July. There will now be no prospect of a trial in 2015, as the parties had originally anticipated. However, it cannot be overlooked that other factors - such as delays in the related proceedings - might also operate to put back the trial date.[36]There is a witness statement from Miss Afshan Ahmed, a trainee solicitor at Browne Jacobson who has been assisting Mr Westlake in this litigation. She was the person who spoke to the Defendant's solicitors on the afternoon of 29 June 2015 in order to obtain an extension of time for service of the particulars of claim in the Fibrespeed action. She says that she intended to refer to this action.[37]I attach little significance to this error. For the reasons that I have already explained, the failure here was to leave matters until the afternoon of the day before the deadline expired. It seems that she was asked by Mr Westlake to make the requests for extensions of time - in both actions - and so I assume that he must take responsibility for the timing of these requests (or, more accurately, for the one request that was actually made).[38]At this point, I should say a little more about the history of this claim. As I have already mentioned, in 2013 there was an adjudication: the dispute was referred by the Claimant. The claim that was made in that adjudication seems to have been very similar to that advanced in the current action. It was dismissed by the adjudicator because he said that “having read the Referral I had no real insight into NMC's case”. So this is a claim on which the Claimant has been working for some two years.[39]Since the claim form was issued in July 2014 there has been something of a history in terms of extensions of time for service of particulars of claim. By agreement the action was stayed until 3 November 2014 in order to enable a mediation to take place in October 2014. That stay was made by a consent order dated 27 August 2014.[40]On 4 November 2014 the Claimant proposed draft directions, which included filing and service of particulars of claim by 19 December 2014. However, there was no immediate response and the stipulated date for service of the particulars of claim passed. At that stage it was contemplated that there would be a trial towards the end of 2015. On 24 November 2014 the Defendant's solicitors pointed out that time the service of the particulars of claim had passed but offered an extension of time until 19 December 2014, as the Claimant had originally proposed. The Claimant's solicitors replied by letter dated 27 November 2014 indicating that “in practice” it was now “more likely” that the particulars of claim would not be served until 16 January 2015. This was agreed, although DLA Piper queried the amount of time that it appeared to be taking to prepare the particulars of claim.[41]A case management conference had been listed for 16 January 2015, but this was subsequently vacated by consent. On 9 January 2015 DLA Piper were told that the Claimant was not in a position to serve the particulars of claim by 16 January 2015, but it seems that there was no request for or agreement to an extension of time. 16 January 2015 came and went without service of the particulars of claim and so, by letter dated 30 January 2015, the Defendant indicated that it was not prepared to let the Claimant take as long as it liked to serve the particulars of claim.[42]By an e-mail dated 2 March 2015, Browne Jacobson requested an extension of time for service of the particulars of claim until 30 June 2015. This, it seems, was the first of many e-mails in which the subject was described as claim number HT-2015-0036, when the claim actually concerned was that relating to Project Yellow (HT-2014-000045). It will be noted that this request was made well out of time. However, it was subsequently granted. I have already described in some detail how this extension of time came to be granted.[43]Thereafter, nothing happened in relation to service of the particulars of claim until the conversation between solicitors that took place on the afternoon of 29 June 2015. Finally, and probably galvanised by the Defendant's application to strike out the claim that was issued on 14 July 2015, the Particulars of Claim were served on 20 July 2015 - over two weeks late.[44]In the judgment of Lord Dyson MR and Vos LJ in Denton they said, at paragraph 27:
“The assessment of the seriousness or significance of the breach should not, initially at least, involve a consideration of other unrelated failures that may have occurred in the past. At the first stage, the court should concentrate on an assessment of the seriousness and significance of the very breach in respect of which relief from sanctions is sought. We accept that the court may wish to take into account, as one of the relevant circumstances of the case, the defaulter's previous conduct in the litigation (for example, if the breach is the latest in the series of failures to comply with orders concerning, say, the service of witness statements). We consider that this is better done at the third stage (see para 36 below) rather than as part of the assessment of seriousness or significance of the breach.”
[45]As Mr Mort pointed out, there is a slight tension between the use of the word “unrelated” in the second line of this passage and the reference in parenthesis to a series of failures that might, in one sense, be said to be related. However, I consider that I should err on the side of caution and ignore the previous failures to keep to deadlines or to make applications for extensions of time prior to the expiry of the relevant deadline. However, I consider that I can and should take into account the fact that the Claimant took no steps to obtain an extension of time beyond 30 June 2015 until the day before (and then, it seems, failed to do so).[46]I consider that a failure to serve particulars of claim until over two weeks after the expiry of a deadline, particularly when that deadline was about 10 months after the claim form had been issued, should be regarded as a serious and significant breach. I reject the submission to the contrary made by Mr Acton Davis. As I have already indicated, I find the explanation for the delay to be somewhat unconvincing. I consider that it falls short of being a good reason in the context of the rule and the decision in Denton.[47]I therefore turn to consider the application for relief in the light of all the circumstances of the case as I am required to do by CPR 3.9. By contrast to the facts of the Fibrespeed claim, there are some mitigating features. They are these:(i) The period of delay was a little over two weeks, not six weeks.(ii) Particulars of Claim have now been served.(iii) None of the orders made by consent was an “unless order”, whereas a failure to serve within the four month period carries the consequences that I discuss later in this judgment. The Defendant could have stipulated for an “unless order” but, perhaps generously in all the circumstances, did not do so. It might therefore be said that the Defendant had no legitimate expectation that the sanction for the failure to comply with the final deadline would be to have the claim struck out.[48]But in my view the following factors point the other way:(i) The Claimant has missed several deadlines, and on at least two occasions did not seek an extension of time until after the deadline had passed.(ii) The failure to take any steps to seek a further extension of time until the day before the deadline expired, particularly in the light of the history, was cavalier.[49]Taking all the circumstances into account I regard the situation as fairly finely balanced. I have been referred by DLA Piper, very properly, to a very recent decision of the Court of Appeal in Michael Wilson & Partners Ltd v Sinclair & others [2015] EWCA Civ 774. That case involved a very unusual application to reconsider an interlocutory order made by a single Lord Justice refusing relief for a failure to provide security for costs by the date specified in an order. The sanction provided by the order was that if the money was not paid on time, the appeal would be stayed.[50]At paragraph 35 of his judgment Richards LJ said this:
“Bringing together the fact that Rix LJ imposed only a stay, not a strike-out, and what was said in Global Torch Ltd about the giving of every opportunity to comply with an order before resorting to a strike-out, I would not have expected to move straight from a stay to a strike-out in the present case unless there had been a continuing default and a further opportunity, by way of a specific unless order, for MWP to remedy that default. As it was, however, the default had been remedied by the time the formal application for a strike-out was filed and the matter came to be considered by Lewison LJ, so that there was no need for an unless order with the sanction of strike-out for non-compliance. To move straight to a strike-out in those circumstances was a very strong step indeed and, as it seems to me, a step outwith the contemplation of Rix LJ when he ordered a stay in the event of failure to pay the monies within the time specified.”
[51]In my judgment, this case falls just on the side of granting relief, particularly since Particulars of Claim have now been served (even if that service may have been prompted by the Defendant's application). To strike out this action would be a Draconian remedy, for which I consider there is no sufficient justification.[52]I therefore grant relief from sanctions in this case and I grant the necessary extension of time for service of the Particulars of Claim.

Claim No HT-2015-000036 (Fibrespeed)

[53]In applying the Denton principles, the first question is whether the failure to serve the Particulars of Claim by 2 June 2015 (being 4 months after the date of issue of the claim form) was a serious and significant breach of the rules. By the time the Claimant applied for relief from sanctions, the Particulars of Claim were already more than six weeks out of time and had not been served by the time of the hearing.[54]The rules provide a not ungenerous time of four months in which to serve particulars of claim and in this context I cannot see how a delay of over six weeks can be regarded as either minor or insignificant. I note that Andrew Smith J, in AEI v Alstom UK [2014] EWHC 340 (Comm), had little hesitation in concluding that a delay of 20 days in serving particulars of claim could not be categorised as trivial. Whilst I accept that this was a post Mitchell and pre Denton case, I doubt whether the latter decision would have affected his judgment on that point. Here, of course, the delay was twice as long.[55]In my judgment, this delay cannot be characterised as insignificant or minor, an aspect aggravated by the fact that it could put back the trial date by two or three months (or at least contribute to that happening).[56]I therefore turn to the reason for the delay. So far as claim HT-2015-000036 is concerned, the Claimant's interim statement claiming £2,278,257 was issued in November 2013. The claim must have been formulated with some care and precision at the time. It is not clear how much work has to be done by Driver Trett: the claim is presented in the Claim Form, in effect, as a claim for a debt following the Defendant's alleged failure to serve an appropriate withholding notice as required by statute.[57]This characterisation of the claim was made clear in Browne Jacobson's four page pre-action protocol letter dated 11 February 2015. DLA Piper's reply of 13 March 2015 ran to 10 pages. Only one paragraph dealt with the accuracy of the Claimant's account, which it required the Claimant to particularise.[58]In his second witness statement, Mr Westlake describes the volume of relevant documents as being similar to that in HT-2014-000045, but states that Driver Trett produced preliminary reports dated 17 March 2015, 15 April 2015 and 14 May 2015. It is not explained why counsel have not been able to settle Particulars of Claim before now based on these reports. There may of course be a reason for that, but it is not given in Mr Westlake's second witness statement.[59]In spite of what Mr Westlake has said in his various witness statements, I am quite satisfied that there has been no good reason for the delay, either up to 30 June 2015 or to the date of the application. In so far as the delay has been aggravated by the belief that there was an extension of time until 30 June 2015, I regard the explanation for that belief as thoroughly unsatisfactory.[60]Since I have now concluded that the failure to serve the Particulars of Claim for some six weeks after the expiry of the time for doing so was not only a significant breach of the rules but also one for which no good reason has been shown, I turn to the third stage of the Denton principles.[61]This involves a consideration of all the circumstances of the case including, in particular,(a) the need for litigation to be conducted efficiently and at proportionate cost; and(b) the need to enforce compliance with rules.[62]Whilst there is no specific evidence that the delay in serving the Particulars of Claim has prevented the parties from conducting this litigation efficiently and at proportionate cost, the fact that the delay - albeit possibly in combination with other factors - is likely to put back the date of trial by some 2 to 3 months means that the costs of the litigation are likely to be increased. It is an almost invariable rule that the longer litigation goes on, the more expensive it is. On the other hand, apart from this application for relief from sanctions, the conduct of the Claimant has not used up the resources of the court.[63]But this is a case of fairly serious non-compliance with the rules in circumstances where, if there were real difficulties in preparing the Particulars of Claim by 2 June 2015, there is no reason for not having made an application to the court for an extension of time prior to the expiry of that time limit. Since the Claimant had three preliminary reports - in March, April and May 2015, respectively, it should have been in a position well before the beginning of June 2015 to take a view as to how long it would need to produce the Particulars of Claim.[64]It seems to me that this is a case where factor (b) of CPR 3.9 - the need to enforce compliance with rules, practice directions and orders - is of importance. In this context, I regard the manner in which the Claimant's solicitors went about seeking to obtain a second consent order is a factor which has to be taken into account. At best it was gross carelessness, at worst it was sharp practice. I am not prepared to go so far as to find the latter, but I am left with serious misgivings about it. It is not an answer to say that this was not an act by the Claimant itself: such failures seldom are. In the context of time limits, as often as not the litigant is let down by his lawyers or experts rather than those for whom he is directly responsible.[65]The fact that the Claimant did not take steps, well before the expiry of the time limit, to ask or apply for the necessary extension of time is itself an indication of a fairly cavalier attitude towards the rules. That the Claimant's solicitors did not ask their opponents for an extension of time of the perceived deadline of 30 June 2015 until the afternoon of 29 June 2015 speaks for itself. Leaving matters to the last minute in this way is wholly unacceptable. If the other side says no, there may be real difficulties in getting an application put before a judge before the time limit is due to expire.[66]The Claimant asserts that it has no limitation problem, although that submission does not sit very easily with the fact that it did not follow the pre-action protocol before issuing the claim form on 2 February 2015.[67]It may be that the Claimant can bring this claim by way of counterclaim in the third action that has been brought by the Defendant against the Claimant. However, I do not know enough about that claim to form a view about this.[68]As the courts have repeatedly made clear, to strike out a claim is a very Draconian sanction. It is not the automatic sanction for failure to serve the particulars of claim, unless that is done in breach of an “unless order”. The sanction for failure to serve particulars of claim within the time specified in the rules is that there can be no valid service thereafter without the leave of the court. It is as if the action becomes stayed. However, the practical consequence may not be very different to that of striking out, because the starting of a second claim for the same cause of action while the first action is still in existence would probably amount to an abuse of the process of the court, thus making the second action amenable to being struck out.[69]Taking into account all the circumstances that I have mentioned, I am clearly of the view that in this case relief from sanctions should not be granted. However, I do not consider that this is a case where refusal of relief should prevent the Claimant from starting a fresh claim in respect of the same cause of action if the claim were to be struck out. However, the effect of refusing relief and striking out the claim will mean that the Claimant may be adversely affected if there is a limitation problem. The Claimant asserts that there is not, in which case - if that is correct - no useful purpose would be served by striking out the claim.[70]However, the Defendant considers that the Claimant may have a limitation problem, a position that the Claimant's hasty issue of proceedings without following the pre-action protocol tends to support. If that is the position, then I consider that the Defendant is entitled to ask the court to strike out the claim. I do not consider that it is appropriate on these applications to go into the merits of any limitation defence. If the Claimant is right about the limitation position, then the only prejudice that it will suffer will be that of having to pay the costs thrown away as a result of having the claim struck out. Whether or not the Claimant may have a remedy against its solicitors is not a matter that I consider I should take into account.[71]I consider that the way to deal justly with this application is to refuse relief and to accede to the Defendant's application to strike out this claim. Accordingly, that is the course that I propose to take.[72]I will hear counsel as to the appropriate form of relief, if not agreed, and any questions in relation to costs. I should say that my preliminary view is that the costs of these applications should be paid by the Claimant. It would have had to apply for relief from sanctions in any event. 1 I infer this from the fact that her signature block at the foot of the e-mail shows Dubai telephone numbers. 2 Again, I infer this from the fact that his signature block at the foot of the e-mail shows a Sheffield telephone number.

order

on the contrary, he described it as “an amended order with the correct claim number”. This clearly implied that it was intended to replace the order that had been sent on 2 April 2015. This would be consistent with the fact that no fee was enclosed. (v) There is no evidence that a cheque for the fee was enclosed with the letter (as there was in the case of the letter of 2 April 2015). But if Mr Westlake was intending to file a second consent order with the court, then it would require an additional fee. (vi) There is no explanation (apart from oversight) for this letter not being copied to DLA Piper. (vii) In the last sentence of paragraph 4.7 Mr Westlake wrongly describes “HT-2015-0036” as the Project Yellow claim. This is an error that can be seen to run through many of the e-mails and letters from Browne Jacobson.

Cited in 2 later judgments