This is a housing case, but the procedural issue in this decision is only tangentially related to that. Nonetheless, it is a matter worth noting.

Cutler v Barnet LBC [2014] EWHC 4445 (QB) [Not on Bailii yet, we’ve seen a transcript].

Ms C had been Barnet’s secure tenant. Barnet served Notice to Quit on alleged non-occupation and began possession proceedings. The non-occupation was denied. We won’t go into the details, for reasons that will become clear.

The Court gave directions, including for disclosure.

On 31 October 2013, the matter came before Deputy District Judge Shaw.  He made an order which allocated the claim to multi track provided that the appellant should file any defence by 28 November and that each party should give disclosure by list by 4 pm on 9 January 2014.  The parties were to exchange statements of witness of fact by 4 o’clock on 20 February.  The appellant did not give disclosure, and on 20 February the respondent applied both for summary judgment and for an order striking out the defence for non‑compliance with directions given by Deputy District Judge Shaw.

In a depressingly familiar turn, Ms C had been represented, but the Legal Aid Certificate had been cancelled, and despite the efforts of her solicitors to re-instate legal aid, Ms C was not represented and did not attend the hearing of the application on 28 February 2014. An Unless order was made, debarring Ms C from defending if she had not given disclosure within 14 days. She was served with the order on 20 March, so was to comply by 3 April.

The Claimant/respondent argued that Ms C had not fully complied with the unless order. At a hearing on 8 May 2014, the Court agreed that the disclosure given did not comply with the order. During that hearing, Ms C’s counsel made an oral application for relief from sanction, citing also a paper application to vary the order of 31 October and witness statement in support that had been filed by Ms C’s solicitors in April 2014 and a further statement from Ms C’s solicitor dated 2 May 2014.

The Court decided that any application for relief from sanction had to be made formally (in writing) under CPR 23. There was therefore no application before the Court. Ms C’s defence was therefore stuck out.

Ms C appealed. The grounds were that the Judge had erred in:

(1) finding that he had no discretion to consider an oral application for relief from sanction;
(2) finding that there was no application for relief from sanction;
(3) finding that such an application had to be made formally in writing;
(4) thereby failing to consider his broad discretion in case management powers under CPR 3.1(2) and Rule 3.3(1);
(5) failing to consider the respondent’s failure to comply with the mandatory requirement under CPR 3.5.5; and
(6) failing to consider the appellant’s right to a fair trial under common law and Article 6 ECHR, in particular given that this case involves the loss of the appellant’s home.

The High Court put grounds 1-4 together and held:

24. In my judgment, the absence of a formal application under CPR 23 does not conclude the matter.  At the hearing before the judge, Mr Grigg [counsel for C] made an oral application for relief from sanctions which was supported by the statement of Mr Calendar, the appellant’s solicitor, dated 11 April 2014, in support of the application to amend the directions of Deputy District Judge Shaw made on 31 October 2013 and, in addition, there is the statement of Mr Calendar of 2 May 2014.

25. CPR 3.8 does not require the application to be made in writing, nor does CPR 3.9.  In my judgment, the learned judge had power under Rule 3.8 to determine the application that was made before him on the appellant’s behalf, as indeed he could have done if he considered it appropriate to do so on his own initiative.

26. The decisions made by the Court of Appeal in Keen Philips v Field and Marcan Shipping, to which I have referred in this regard, remain in my view good law.  That the court can of its own motion consider whether there should be such relief has been confirmed recently by the Court of Appeal in Circle Thirty Three Housing Trust Ltd v Nelson [2014] EWCA Civ 106 (see the judgment of Sir Robin Jacob at paragraph 18).

Given this, grounds 5 and 6 were dealt with quickly. Ground 5 was not a separate ground of appeal, but on ground 6:

28. […] Mr Grigg [for Ms C], in support of ground 6, referred me to the decision of the Court of Appeal in Folashade Rashida Momson v Dauda Abiodun Azeez [2009] EWCA civ 202, where the Court of Appeal considered the application of Article 6 to relief from sanctions.

29. In my judgment, applying the principles set out in Folashade, the learned judge should have balanced the Part 3.9 factors and considered proportionality and the overriding objective. This he failed to do. In my view, debarring the appellant from defending possession of her home purely on the basis that there had been no formal application issued under CPR 23, does amount to a breach of Article 6, ECHR.

The order of 8 May was set aside.

So, there is no requirement for an application for relief from sanction to be made formally under CPR 23 (though obviously this would be a good idea!).

And on a matter so significant as defending a possession claim for the defendant’s home, it would seem that a purely technical strike out may amount to a breach of Article 6, though the extent of this finding will no doubt be tested in other cases, as here it is only related to debarring a defence in the absence of a formal application for relief.