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Procedure: Fred Perry - Game Set and Match?

In recent months the Court of Appeal (CA) has considered a number of appeals about the discretion to grant/refuse relief from sanction under CPR 3.9.

In Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd [2012] EWCA Civ 224, a passing off claim, the CA upheld the Judge’s refusal to grant D relief where there had been numerous breaches of orders, ‘unless’ orders, and costs sanctions. Jackson LJ deprecated the culture of non-compliance with the CPR and expressed concern that relief was being granted too readily. 

In Mannion v Ginty [2012] EWCA Civ 1667 the CA held that the court’s powers to make summary orders disposing of a claim/defence is not removed because the dispute relates to a party’s home. However, article 8 ECHR requires the court to consider the effect that the strike out or the refusal of relief will have. D had failed to give disclosure, ignored a consequent ‘unless’ order, did not serve her application for relief from sanction on C, failed to comply with an ‘unless’ order about the appeal bundle, and provided no explanation for delay. 

In Ryder plc v Beever [2012] EWCA Civ 1737 the CA upheld the Judge’s decision to allow an appeal against an order striking out a £2.5m PI claim where liability had been admitted. C had no opportunity to be heard on D’s informal application for an ‘unless’ order and was not the sole author of the loss of a trial date. 

Fred Perry and Mannion are both at the extreme end of non-compliance. Nevertheless, the courts are now enjoined to take a tougher line with defaults. Changes to CPR 3.9 in April 2013 will further raise this discretionary bar.

Derek Kerr / 1st Mar 2013


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