Cockell (t/a Cockell Building Services) v Holton 2015

The case of Cockell (t/a Cockell Building Services) v Holton (No 2) [2015] EWHC 1117 (TCC) (22 April 2015), before Mr Justice Edwards-Stuart, involved an application for relief from sanctions by the Defendant who had failed to comply with an “unless” order to serve and file a re-pleaded Counterclaim by 4 pm, the 20th March 2015.

The amended Defence and Counterclaim appeared to have been served on the Claimant on time but because of an error in the email address it was not sent and was then filed at the court and arrived a few days afterwards.

The Defendants made their application for relief from sanctions on the 25th March 2015 in respect of their Counterclaim. In the Claimant’s skeleton argument in opposition to the application they stated that this was not a one off error but conduct by the Defendants amounting to a continuous breach of the Court order of the 20th December 2014. The Claimants also objected to the grant of permission to amend the Defence and Counterclaim.

The recent case of Denton in the Court of Appeal 2014 set out three stages to follow when giving consideration to an application for relief from sanctions:

  • Stage 1 – Identify and assess how serious and significant is the breach
  • Stage 2 – Assess why the default occurred
  • Stage 3 – Evaluate at all the circumstances to enable the court to deal with the application in a fair and just manner

Justice Edwards-Stuart followed this approach and refused relief.

  • Stage 1 – He considered it a serious breach as the counterclaim itself didn’t comply with the order of the judge and it was so close to the trial which was listed for July. It was not just a question of missing the deadline.
  • Stage 2- The judge considered there was “ no good, coherent or even faintly plausible reason has been advanced to justify the astonishing delay in the receipt by the Defendant’s solicitors of the information that was required to re-plead the Counterclaim.”The information provided then fell short of what was required to provide a re-pleaded Counterclaim of sufficient particularity and clarity.
  • Stage 3- He thought there was no excuse for the failure to serve a properly pleaded Counterclaim in time. He considered the Claimant would be irretrievably prejudiced with the trial listed on 13 July 2015.

“Those who leave necessary steps until just before the deadline must take the risk of a last minute slip up. As the Claimant submitted, the unfortunate mistake that led to the Amended Defence and Counterclaim not being filed with the court in time was simply the final straw following a period of two months in which the Defendant had been in persistent breach of the order of 12 December 2014.”

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