Elizabeth Boon successful in the Court of Appeal
Christine Bangs v FM Conway Limited [2024] EWCA Civ 1461
Elizabeth successfully appealed against a decision of Mr Justice Jacobs in Bangs v FM Conway Ltd [2024] EWHC 494 (Comm) in which, applying the Denton principles for relief from sanctions, he set aside an order striking out the claim on the ground that Particulars of Claim had not been served in time, and extended time for such service.
In doing so, Mr Justice Jacobs attached weight to an admission of liability previously made on behalf of the defendant which had since been withdrawn. He concluded that the admission, together with a combination of other factors, demonstrated that the claimant’s case appeared, at least on the material available to him, to be very strong, so that striking out the claim would be a disproportionate sanction.
FM Conway appealed on the grounds that at the third stage of the Denton test, when considering all of the circumstances of the case, the merits of the underlying claim are generally irrelevant unless it meets the summary judgment test, and that it was unjust for the judge to have considered the merits at all, because the claimant had not raised any argument that the merits of her claim met the summary judgment test (either in advance or at the hearing itself).
The Court of Appeal agreed. The Court confirmed that the relevant test as to whether the merits of the underlying claim can be taken into account is summary judgment (per the Supreme Court decision in Global Torch Ltd v Apex Global Management Ltd (No.2) [2014] UKSC 64), and that Lord Justice Moore-Bick’s reference in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 to ‘very strong’ did not intend a less demanding test than would apply on an application for summary judgment. This is the only exception.
The Court also confirmed that if a party is going to contend that the merits of the underlying claim are so strong (or so weak) that they should be taken into account for case management purposes such as whether to grant relief from sanctions, then notice of this contention should be given in advance of the hearing so that the other party can consider what evidence it needs to deploy. The Court said that notice given only a few days before the hearing, or in a skeleton argument, is likely to be too late.
Accordingly, the appeal was allowed, the order of Mr Justice Jacobs granting relief from sanctions was set aside, and the order striking out the claim against the defendant was restored.
The case brings welcome clarification to the circumstances which will be taken into account at the third stage of a relief from sanctions application, and follows a series of Court of Appeal decisions concerning CPR rule 3.9.[1]
