An application for relief from sanctions has been rejected in the High Court after an error was made in typing an email address.
In Cockell (trading as Cockell Building Services) v Holton counter-claimant Martin Holton had been given almost two months to make an amended counterclaim following a long-running dispute over building work costs with Cockell Building Services.
Mr Justice Edwards-Stuart threatened to strike out the counterclaim, valued at around £1.6m, unless Holton, represented by Midlands firm Blythe Liggins, served the proposed pleading by 20 March.
At 3.46pm on 20 March, the solicitors sent an amended defence and counterclaim to the claimant’s solicitors, as well as an email to court with the same attachments.
However, the email address was mistyped and the message was returned marked undeliverable. This happened on a Friday and so the documents were not filed with the court until early the following week once the problem had come to light.
Edwards-Stuart said as a result of the error in typing an email address, the counterclaim was automatically struck out.
Considering an application for relief from sanctions, the judge, sitting in the Technology and Construction Court, said this mistake alone would be unlikely to have caused a strike out. But the error was the ‘culmination’ of a course of conduct that amounted to a continuing breach of an order made in December.
Holton’s position was that the degree of non-compliance was trivial, particularly as the amended pleading had been served with the claimant on time.
Edwards-Stuart said the non-compliance passed the Denton test of being both serious and significant.
On the reasons behind the delay, Holton said he failed to provide his solicitors with the necessary information until 18 March after a misunderstanding between his insurers and the loss adjusters. Neither he nor his solicitors took any steps to chase up the missing information.
‘This was a case where, for whatever reason, the provision of the necessary information for the re-pleading of the counterclaim was left until the 11th hour,’ said the judge. ‘Those who leave necessary steps until just before the deadline must take the risk of a last-minute slip up.’
Edwards-Stuart did give the defendant permission to amend his defence, but anything new in the counterclaim will not be allowed. The matter will go to trial in July.