SurvivingDistrict Judge Christopher Tromans examines ways in which a striking-out can be avoided The Civil Procedure Rules 1998 (CPR) provide the court with unprecedented powers for use in the pro-active management of cases.

In particular, rule 3.1(3) gives the court an express power to attach conditions to an order, including a direction to make a payment into court, and to specify the consequences of failure to comply with the order or the conditions.While the court is not under any express obligations to attach conditions to an order, there will be less reluctance than before to impose a sanction even in an order requiring something to be done for the first time.

Even where there is no express sanction, one of the bases on which the whole or part of a statement of case can be struck out is where there has been a failure to comply with a rule, practice direction or order (rule 3.4(2)).

Thus, an omission to take a procedural step, such as filing an allocation questionnaire, will often result in an unless order and in principle could lead to a strike-out of the court's initiative.Help!What, then, do you do if you are faced with a sanction as a result of a mistake, forgetfulness or even a specific problem beyond your control? Forget about the Human Rights Act 1998.

Article 6 (1) does not require a hearing to take place before an order imposing a sanction can be made.

Nor does it provide a means of escape from a failure to comply with a rule.

Even if the sanction has been imposed of the court's own initiative, the right to apply for it to be set aside or varied within seven days under rule 3.3(5) is probably sufficient to ensure that the rule is compliant with article 6.Nor, in the case of a time limit, is it sufficient to do a deal with the other side.

Where a rule, practice direction or order requires something to be done within a specified time period and states the consequences of failure, rule 3.8(3) precludes any extension of time by agreement.The desirable way forward is to apply for an extension of the time within which to comply.

This should preferably be done before the time has expired.

Although rule 3.1(2)(a) permits an application to be made after expiry, the court will in such a case be looking for a better quality of excuse.

Parties are required by rule 1.3 to help the court to further the overriding objective, and if you have a problem, you should bring it to the court's attention as soon as possible.Otherwise, an application should be made for relief from sanctions, supported by evidence, pursuant to rule 3.9.

The court will consider all the circumstances and in particular the nine factors listed in rule 3.9(1), which must be considered individually and systematically (Bansal v Cheema, 2 March 2000 CA unreported).

Explanations and whether there have been other defaults will be important factors.

If the trial date can still be met if relief is granted, the court will be reluctant to retain the extreme sanction of a strike-out.

The proportionality of the sanction will be another important consideration.

In Keith v CPM Field Marketing Ltd (2000) The Times, 29 August, CA the defendants had, in the contention of the claimant's solicitors, been difficult about disclosure and the district judge had made an unless order providing for the defence to be struck out if disclosure was not made within a specified period.Before the time limit had expired, the defendants applied to a circuit judge for an extension of time, alternatively for relief from the sanction.

The circuit judge, two days before the judgments in Bansal v Cheema, refused to extend the time and struck out the defence, even though no trial date had been fixed at that stage.The Court of Appeal per Lord Justice Brooke concluded that the circuit judge's order was, in the circumstances, disproportionate.

In many cases there will be alternatives which enable a case to be dealt with justly without taking the draconian step of striking the case out.

Relaxed - relativelyEven in 'want of prosecution' cases, the approach of the Court of Appeal to date has been relatively relaxed.

The old and hard-line authorities will generally be no longer of relevance and alternatives to striking out will be appropriate if they produce a more just result (Biguzzi v Rank Leisure plc [1999] 4 All ER 934 CA).

Where liability is not in dispute, it may be possible to protect a defendant from prejudice by making orders for costs or by disallowing interest (Walsh v Misseldine [2000] All ER (D) 261).

The inherent justice of the particular case must be considered in the light of the overriding objective (Purdy v Cambran [1999] All ER (D) 1518).

However, the thought processes behind decisions such as Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426 should not be thrown overboard, and striking out can still be an appropriate sanction in a case where there has been prolonged and wholesale disregard of rules and orders (UCB Corporate Services Ltd v Halifax SW Ltd, 6 December 1999, CA, unreported).District judge Christopher Tromans sits at Plymouth Combined Court Centre