In the non-patent case of Fred Perry (Holdings) Limited v Brands Plaza Trading Limited & Another [2012] EWCA Civ 224, the Court of Appeal has signalled the intent of the English courts to require civil litigation to be pushed along at a reasonable pace. This case concerned a "relief from sanctions" application on behalf of defendants that had missed numerous court deadlines and orders. The defendants in this case had not complied with an English court procedural order known as an "unless order". They had also failed to comply with a number of directions set out in the case and not complied with various English Civil Procedure Rules ("CPR"). As a result of this non-compliance, the defences in the case had been struck out and judgment entered for the claimant (Fred Perry). The defendants had then applied under CPR 3.9 for "relief from sanctions" to set aside this default judgment. The application was made on the basis that justice would be best served by allowing the defendants in the case to present a defence at trial and that the appropriate sanction against them in this matter was to penalise them in costs.
The courts' approach to such applications in the past has been lenient. However, it was made clear by the Lords Justice in this judgment that non-compliance with both the Civil Procedure Rules and also orders of the court will not be tolerated. The Court also noted that the defendants' suggestion of a costs sanction rang particularly hollow given that they had also failed to pay earlier costs orders and that one of the reasons given for their non-compliance with court orders and CPR provisions was a lack of funds. The defendants failed in their appeal and so the defences were struck out and judgment in favour of the claimant confirmed. Lord Justice Jackson was keen to highlight that this particular provision of the CPR will change in a year's time. Gone will be the rather complex multi-factorial provision that resembled a "tick-box" exercise and in its place will be a provision focussing very much on the judge's analysis of the facts of the particular case in the round.
It is worth replicating the new rule in full:
"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider the circumstances of the case, so as to enable it to deal justly with the application including the need:
- For litigation to be conducted efficiently and at proportionate cost; and
- To enforce compliance with rules, practice directions and court orders."
Litigants have been warned.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.