The High Court has overturned a judgment that granted leniency to a defendant who missed two deadlines for filing a document in a civil case.
Oak Cash & Carry, a defendant represented by Oxford firm Bower & Bailey in a dispute with British Gas, had been granted relief from sanction in April despite submitting a listing questionnaire 18 days late.
Both parties had been given until 3 February to submit the document in British Gas Trading v Oak Cash & Carry but the defendant failed to comply.
A further ‘unless’ order warned that the defence would be struck out if it was not submitted by 19 February, but the day before this deadline the defendant filed a directions questionnaire with the court.
The court had to contact the defendant to say the wrong document had been submitted, and the correct one arrived by fax only on 21 February. On 27 February the defendant solicitors wrote to the court apologising for the mistake.
The claimant solicitors, from London firm Moon Beever, requested a judgment in default and on 18 March the sum of £211,388 was granted to British Gas.
However, this judgment was set aside in April by His Honour Judge Harris as relief from sanction was granted.
Following a hearing in October, Mrs Justice McGowan said Harris ‘fell into error in applying an overly generous interpretation’ of the landmark Mitchell judgment.
The subsequent Denton judgment, which sought to clarify Mitchell, introduced three tests for refusing relief: that the breach was serious significant; the breach was for no good reason; and the circumstances of the case as a whole.
McGowan said the non-compliance with a court order was serious and significant as the defendant’s solicitors had more than three months to complete a ‘not particularly difficult questionnaire’.
She noted that the defendant’s solicitor had suffered personal difficulties during the court of litigation, but she said there should be provision in a firm of more than 40 qualified solicitors to cover such circumstances.
In the event, she said conduct of the case was handed to a trainee solicitor who must not have had sufficient experience to identify the correct form.
Despite the questionnaire not being the most important document provided in the conduct of litigation, McGowan said its absence meant the third element of Denton was passed.
‘The persistent failure to provide such a questionnaire meant that in this particular case the trial date of two days was lost. That must be a matter of grave concern,’ she added.