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Ooops – disproportionate strike-out


A certain amount of amusement has been circulating around London housing firms at the Court of Appeal judgment in London Borough of Southwark -v- Onayomake [2007] EWCA Civ 1426 (Bailii link, or link to WLR case note here, but may only be briefly freely available).

Or perhaps Schadenfreude would be the more accurate term. Mr Onayomake had a substantive defence and counterclaim to a possession claim on the basis of succession. Southwark said, slightly bizarrely, he was a tolerated trespasser. DJ Zimmels at Lambeth County Court gave directions for a fast track trial, including filing Pre Trial Checklists. The Defendant’s solicitors failed to file on time. A Case Management Conference was listed for a fortnight later. The Defendant’s representative was late. By the time they arrived, DJ Zimmels had already struck out the Defence and Counterclaim. An application for relief was then dismissed at the hearing of the (now undefended) claim for possession. A possession order was made.

Somewhat surprisingly, an appeal was dismissed by Mr Recorder Widdup, so onwards to the Court of Appeal.

The Court of Appeal held, quite rightly I think, that striking-out was a disproportionate sanction for the failure to file PTR and lateness by the legal representatives. Although a claim in negligence against the solicitors was an option for the Defendant, it hardly would compensate for the loss of his home. The DJ was plainly wrong and the Recorder should have said so.

Now, Hartnells took the case to the Court of Appeal. I am presuming, perhaps wrongly, that Hartnells weren’t the unfortunate firm the represented the Defendant in the possession claim. Granted that these things can happen to any of us, but in a mischievous spirit, does anybody know who did? [Edit – the Bailii Judgment identifies the unfortunate firm].  The second element of Schadenfreude, of course, concerns the DJ. Enough said.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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