Andrew Smith J (who you may remember was one of the unlucky judges to be criticised by the Master of the Rolls in Mitchell for being too lenient) was required to consider whether to grant AEI retrospective permission to file its particulars of claim out of time.
AEI had brought a claim against Alstom. It was issued on 20 September 2013. They did not file their particulars of claim with the claim form. As such, they were required to file their particulars of claim within 28 days in the event that Alstom filed an acknowledgment of service.
On 1 October 2013, Alstom filed their acknowledgment of service. The court, however, did not notify AEI in writing- and in breach of CPR 10.4 – (apparently because the Commercial Court was very busy)* – but did tell AEI by telephone on 8 October 2013. However, by 29 October 2013, AEI had failed to file their particulars of claim and at 5.20pm asked Alstom for an extension of time. On 30 October 2013, Alstom replied by stating it was not for them to agree any such extension.
On 13 November 2013, Alstom applied to strike out AEI’s claim. On 18 November 2013, AEI served Alstom with the particulars and made an application to retrospectively extend time.
Andrew Smith J accepted that, while not strictly a relief from sanction case, what the Court of Appeal in Mitchell applied, i.e. either the failure to comply with a rule or order was trivial or there had to be a good reason for the failure. This was because the court was required to apply the overriding objective and the new overriding objective required proceedings to be conducted at a proportionate costs and the court was required to enforce compliance with rules and orders.
In this case the application was refused because the delay was not trivial (despite no prejudice being suffered) and AEI had provided no good reason for the delay. This was despite the fact that Andrew Smith J found that “looking at the position simply between the parties … I would consider an order striking out the claim to be a disproportionate response to AEI’s non-compliance, given that the delay in serving the particulars, though not insignificant, was remedied after 20 days and that it did not disadvantage Alstom”. However, that needed to be balanced against the “emphasis that the Court of Appeal has given to enforcement of the CPR in order to encourage procedural discipline …”
So there you have it. Even if striking a claim out would be disproportionate, absent a good reason or if a failure to comply with a rule is not trivial, it must be done anyway. That is now justice.
*To this Andrew Smith J said
“I understand that it is provoking for solicitors that the court service should so explain non-compliance with the CPR when the Court of Appeal has said that they, financial pressures notwithstanding, can seldom do so.”