The Supreme Court has blocked an attempt to recover relief from sanctions after a late litigant made a second application.
Following a shares sale dispute in 2013, the claimant, named as Mr Thevarajah, had sought an ‘unless’ order forcing the defendants to disclose certain assets otherwise they would be debarred from defending the claim.
They failed to comply with the terms, and the High Court subsequently made the debarring order and dismissed their application for relief from sanctions.
Having instructed fresh solicitors, the defendants made a second application for relief one day before the trial was due to start.
This fresh application was upheld by a deputy High Court judge but the decision overturned in the Court of Appeal, leading the matter to come before the Supreme Court.
In a judgment published today in Thevarajah v Riordan and others, Supreme Court president Lord Neuberger (pictured) said he agreed with the ruling of the Court of Appeal, but would seek to explain the decision to prevent the defendants (now appellants) leaving with an ‘understandable feeling of grievance’.
Neuberger, who received unanimous support from four other Supreme Court judges, said the appellants could not show there had been a ‘material change of circumstances’ since the hearing of the first relief application.
Represented by YVA Solicitors LLP, they had argued before the deputy judge they had tried hard to comply with the ‘unless’ order and that their failure - which they argued was ‘relatively slight’ - was due to the extensive nature of the disclosure required.
They claimed that full disclosure had since been made and argued that to maintain the debarring order would be ‘disproportionate’.
The respondent, represented by Olephant Solicitors, maintained the second application was an abuse of process and the merits of the debarring order stood – not least because the appellants had still not provided full disclosure.
The deputy judge had concluded the appellants were ‘entitled to take part in the trial’ and that subsequent disclosure represented sufficient change of circumstances. In the Court of Appeal, Lord Justice Richards rejected the view there had been a material change in circumstances.
Neuberger said the deputy judge, through the second application, was being asked to ‘vary or revoke’ the first order.
He said the appeal court was right to hold that subsequent alleged compliance with an ‘unless’ order was not a material change of circumstances.
‘By refusing the party’s first application for relief from sanctions, the court would have effectively been saying that it was now too late for that party to comply with the “unless” order and obtain relief from sanctions.’
In any event, he questioned whether the appellants had complied with the original order and said there was little evidence their previous solicitors were to blame for non-compliance. The Court of Appeal stance was in line with the position taken by the court in both the Mitchell and Denton judgments, he added.