A litigant described as having a ‘relaxed and frankly reckless’ approach to timely service of documents has been denied relief in the Court of Appeal.
The claimant in Elo Trustees Ltd v Bonhams 1793 Ltd & Anor had challenged the High Court decision that his claim should fall foul of an 'unless' order after being served a day late.
The case was complicated by the court's failure to issue the claim form for several days because of confusion about the litigant’s name: 'Mr XXXX Elo'. It had been assumed Elo was seeking anonymity and would need to apply for that.
The Court of Appeal noted that the claimant had an approach of leaving things to and beyond the last minute. The High Court had said in its ruling that Elo Trustees Ltd (ETYL) was the ‘author of its own misfortune’.
Elo was in dispute with a loan firm about repayments, with the lender taking possession of eight rare cars and arranging their sale through auction house Bonhams.
ETL, majority owned by Elo, applied for an injunction preventing the sale. It was granted on the basis that Elo issued a claim form by 14 April, 2022, and serve any claim form on the defendants within six days of that date.
In the event, he issued the claim on the deadline itself, but the court did not issue it for several days and ETL did not chase it up. The confusion about Mr Elo’s name and a further problem with the court fee – the court wrongly stated the incorrect fee had been paid – meant the claim was issued out of time.
ETL emailed the claim form to Bonhams on 19 April but did not have consent to do so. The claim form was then posted a day later but was only received – and deemed served – on 22 April.
Deputy High Court Judge Charles Bagot KC applied the Denton test of whether the breaches of the unless order were serious or significant. Bagot said the claimant had ample time to get evidence together for the application and the fact he was resident in Florida was no reason to be late. The judge said ETL viewed dates in the Foxton order as ‘targets rather than strict deadlines to be complied with’ and tts defaults were ‘almost wholly unexplained’.
When it came to the court’s problem with the name, ETL ‘could and should have anticipated that, unless it was explained, Mr Elo’s highly unusual first name might be queried’. The claimant did nothing to chase up and did not make the court aware of the unless orders.
The Court of Appeal said the judge was ‘perfectly entitled’ to make the point that one source of the delay could have been avoided by ETL speaking to the court about Mr Elo’s name. The judges ruled unanimously that the judge made no material error in deciding to refuse ETL relief from sanctions.
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