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||Neutral Citation Number:  EWHC 4017 (QB)
||Case No: HQ11X03831
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WARBY
|| KENNETH GREIG
||- and -
||(1) ANTHONY FRANCIS STIRLING
(2) ANTHONY THOMAS ETRIDGE
Jennifer Meech (instructed by Endeavour Partnership LLP) for the Claimant
The Second Defendant in person
Hearing date: 13 October 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Warby: Introduction
- On 13 October 2014 I heard applications on behalf of the Claimant, Mr Greig, to set aside (1) an order dated 7 April 2014 striking out Mr Greig's claim against the Second Defendant, Mr Etridge, and (2) an order dated 18 June 2014 that Mr Greig pay Mr Etridge's costs of the claim and his costs of the application for such costs. Mr Greig was represented by Counsel, though he has represented himself for much of the action. Mr Etridge has previously been represented by solicitors but appeared in person before me. I made an order setting aside both the previous orders, stating that I would give my reasons later which I now do.
- In summary, my reasons were as follows. (1) I accepted the submission made on behalf of Mr Greig that the order of 7 April 2014 was one made without a hearing in circumstances which gave Mr Greig a right under PD23A and CPR 3.3(5) to apply to set it aside; (2) I concluded that it would be just to grant an extension of time for making such an application, if one was necessary; (3) reconsidering the matter on the basis of evidence which included facts that had not been before the judge who struck out the claim I concluded that the claim ought not to be dismissed; (4) the costs order of 18 June 2014 was parasitic on the striking out of the claim; since it had been made in Mr Greig's absence the court had power under CPR 23.11(2) to re-hear it; having done so I decided that the costs order should be set aside along with the order to strike out.
- In this action Mr Greig makes money claims against the two defendants arising from dealings with Spanish properties. The claim was started in November 2008 and the events the subject of the proceedings go back to the 1990s. However, those most relevant to the matters in dispute before me begin in 2010. The account which follows is based upon undisputed evidence except where I indicate otherwise.
- On 17 August 2010 a judgment was entered in default against the First Defendant, Mr Stirling, for £919,463. On 2 August 2013 the action came before Master McCloud for a case management conference. The Master gave directions which allocated the case to the multi-track and provided for a trial of the claim against Mr Etridge in the window 1 April 2014 to 30 May 2014 with a time estimate of 4 days. So far as the claim against Mr Stirling is concerned the Master's Order recorded that he was deceased, and directed that:
"2. the Claimant shall by 4pm on 14 August 2013 amend the Claim form and the Particulars to substitute for the First Defendant the Executors or the Administrators of the Estate of the Late Anthony Stirling deceased and the claim shall continue for purposes of enforcement only against that estate."
- That amendment was not made. On 21 February 2014 Mr Etridge wrote to the Master complaining that Mr Greig was refusing to co-operate in listing an application by him to amend his Defence. In response, on 4 March 2014 the Master made an order that unless dates to avoid and a time estimate for that purpose were provided by Mr Greig by 28 March 2014 the claim should be struck out with costs.
- On 12 March 2014 Mr Etridge signed an application notice seeking an order striking out Mr Greig's claim against him on the following grounds.
"i) The claim was lodged in November 2008, nearly five and a half years ago. An examination of the files regarding the claim will reveal that the Claimant has been guilty of deliberately delaying the progress of the claim, has refused to obey the Master's order that the estate of late First Defendant be served with the claim and is, therefore, I believe abusing the court process.
ii) The Claimant has already obtained judgment against the First Defendant and has his remedy."
The application notice stated that Mr Etridge wanted his application dealt with by a Master without a hearing, with a time estimate of 45 minutes.
- In support of the application Mr Etridge made a short witness statement with one exhibit, summarising the procedural background of the claim and the current position. He referred to the case management conference of 2 August 2013. He said that:-
"10 At this conference the Master directed the Claimant to serve his claim on the estate and executors of the First Defendant. He has failed to do this and, even as recently stated in his Listing Questionnaire of February 7, 2014, only one month ago, said that he is still unsure as to whether the First Defendant has actually died. Via the internet I was able to establish that the First Defendant had died and subsequently obtain the name of the Lawyers and the Executors of his estate within two weeks of searching for this information. I attach as exhibit ATE1 the newspaper Notice re Probate for the late First Defendant. The Claimant states that he has been trying to establish the same for more than two years. I wonder why he has failed to do so? The First Defendant was a man of very considerable means and I believe that his estate would have funds to satisfy the judgment that the Claimant has in his favour. For the Claimant to fail to comply with the Master's Order and serve the late First Defendant's estate with his claims is preposterous."
- Exhibit ATE1 was a copy of a newspaper announcement giving notice of an application number 109/2013 for probate of the will of Mr Stirling to be granted to Mrs Raidie Margaret Keogh from Limassol.
- Mr Etridge went on to refer to his attempts to obtain suitable dates for a hearing of his application to amend his Defence and to Mr Greig's alleged obstruction of those attempts. He observed that a date had still not been fixed. He concluded:
"14. Overall it appears that the Claimant is continuing to pursue me rather than follow the Master's Order and serve his claim on the First Defendant's estate. This is I believe is a totally frivolous and vexatious action and that his claim against me is without merit. He already has judgment against the First Defendant. Bearing in mind that the claim relates to matters occurring 20 years ago it is now very difficult to recall events. The Claimant's constant delay in processing his claim only exacerbates the problem. He has not pursued the claim diligently and his delaying tactics make it more difficult to deal with it now and to see that justice be done…
Because I consider the claim against me to be without merit and because of the inordinate delay in processing it by the Claimant I therefore request, via this application, that the claim against me be struck out and that costs be awarded in my favour."
- Copies of the application notice and the witness statement in support were sent by post to Mr Greig and received by him on 17 March. On 24 March 2014 Mr Etridge wrote to the Master, with a copy to Mr Greig, enclosing an amended application notice and making clear that he wished the matter to be dealt with without a hearing "because it is so straightforward".
- On 26 March 2014 Mr Greig sent the Master a letter and Note responding to and dealing with Mr Etridge's application for permission to amend and the pending strike-out application. These documents were copied to Mr Etridge under cover of a letter of the same day, dealing with the same two topics. In that letter Mr Greig indicated that he had set out in his Note his position regarding dates for a hearing in London of the amendment application, but was still hoping that the Master would not decide that the hearing of that application should take place other than by telephone. As for Mr Etridge's application to strike out, Mr Greig said this:
"Your application to strike out
I have addressed this matter briefly in my Note to the Master and I shall wait to hear from the Court when it is to be listed before submitting my arguments to oppose your application."
Mr Greig's letter to Mr Etridge was copied to the Masters Support Unit.
- On 31 March 2014 the Master made a further order as follows:
"UPON READING a letter from the 2nd Defendant
UPON the Court being informed by letter dated 21 February 2014 that the Respondent is not co-operating with listing the application [for permission to amend] by providing a time estimate it is ordered that
1. Claim stayed."
This was the second order based upon Mr Etridge's letter of 21 February 2014. It appears from the nature of the order and from what follows that the Master had not seen Mr Greig's letter of 26 March when she made this Order.
- On 14 April 2014 the Master's Order of 31 March 2014 was sealed. A copy was then sent to Mr Greig. Having received it he wrote to the Master on 19 April 2014. He suggested that she may not have seen his letter of 26 March when she made the order for a stay. He said that he had explained that he was content for Mr Etridge's application to be dealt with by a 30 minute telephone hearing on any morning of the week or, if the Master was minded to order a hearing in person of 1 ½ hours, on any Monday morning. He asked for clarification, seeking to know in particular why the stay had been imposed and what he needed to do to have it lifted.
- On 22 April 2014 Mr Greig called the Master's Support Unit to follow up and was told that there was a ten day delay in dealing with incoming correspondence. Mr Greig called again on 7 or 8 May 2014 (the evidence leaves it unclear which it was). He was told that his letter of 19 April had gone to the Master on 2 May. On 9 May 2014 Mr Greig wrote to the court, referring to this conversation and asking for confirmation of when his letter of 26 March had been passed to the Master. He wrote: "It is important for me to know this as the Second Defendant in these proceedings is complaining that I am not acting diligently in respect of his pending application to amend his Defence and this is having an effect on the pursuit of my claim which has been stayed."
- This specific question was not answered, but on 13 May 2014 the Master's Support Unit wrote to Mr Greig notifying him of an order made by the Master upon reading his letter of 19 April 2014. The order was that the Master's order of 31 March 2014 be set aside and that Mr Etridge's application to amend his Defence be listed for hearing on Monday 13 October 2014 with a 1 ½ hour time estimate.
- Whilst these events were unfolding Mr Etridge's application for an order striking out the claim against him had been passed to the Interim Applications Court and dealt with by a judge on the papers, without a hearing. No notice was given to either party that this was to occur. On 7 April 2014 Wilkie J made an order as follows:
"UPON an application notice by the Second Respondent dated 19 March 2014 seeking an order to strike out the claim against him.
AND UPON the Applicant and the Respondents being neither present nor represented.
AND UPON the Judge having read the written evidence filed.
IT IS ORDERED that the claim against the Second Respondent be [struck] out."
- The questions of when that order was served on and received by Mr Greig were in dispute before me. Mr Etridge maintained that it had been served and received shortly after it was made. Mr Greig denied this. He was adamant that he did not receive a copy from the court and never received one until 8 July 2014. I shall return to this issue. Mr Etridge received a copy of Wilkie J's order and on 15 April 2014 he wrote to the Master's Support Unit referring to the order and asking that the judge look at the order again "to confirm whether any costs are awarded in this case". He emphasised that he had incurred substantial costs. This letter does not appear on its face to have been copied to Mr Greig, whose evidence was that he did not receive a copy.
- On 13 May 2014 Wilkie J made an order "having considered the Second Respondent's letter dated 15th April" that "The court makes no order in respect of the Second Respondent's request for an order for costs." The judge gave reasons, explaining that the application notice had contained no application for costs and that it would be necessary for Mr Etridge to "make a proper application, support it with a witness statement … [and] serve that application, and evidence in support" on Mr Greig so that he should have an opportunity to answer it. Mr Greig's evidence was that he did not receive a copy of this further Order of Wilkie J.
- On 23 May 2014 Mr Etridge issued a formal application notice, supported by a witness statement and exhibits of the same date, seeking orders that Mr Greig pay his costs of the case and the costs of the application. The application notice requested that the matter be dealt with without a hearing. On 6 June 2014 the Queen's Bench Listing office wrote to Mr Etridge to notify him that the application had been listed for a 30 minute hearing on 18 June 2014 and that he should serve the application on all other parties.
- On 11 June 2014 Mr Etridge posted to Mr Greig a letter of that date giving notice of the hearing date and enclosing his application notice, witness statement and exhibits. He also enclosed a certificate of service also dated 11 June 2014 stating that he had sent the documents that day to Mr Greig's usual residence using "first class post or other service which provides for delivery on the next business day." The service employed was the "signed for" service. Subsequently, Mr Etridge obtained from the Royal Mail a document entitled "Track your item Proof of delivery" which stated that "Your item with reference KF606605219GB was delivered from our STOCKTON AREA delivery office on 14/06/14." I shall call this the Proof of Delivery Certificate.
- Mr Etridge's application for costs was dealt with by Lewis J at a hearing on 18 June 2014. Mr Etridge appeared, but Mr Greig was not present or represented. Lewis J made an order that "UPON an application notice by [Mr Etridge] dated 23 May 2014 seeking an order for costs against [Mr Greig]" Mr Greig should pay Mr Etridge's costs of the claim and the application, to be subject to detailed assessment if not agreed.
- Mr Etridge's witness statement of 24 July 2014 gave an account of the hearing which explained that:-
"Before commencing the hearing on 18 June, Lewis J went to great pains to satisfy himself that I had done all I could to see that [Mr Greig] had notice of my Application. He concluded that [the Proof of Delivery Certificate] from the Royal Mail was sufficient to allow the hearing to proceed."
- Mr Greig's evidence was, however, that he did not receive these documents. This is another issue to which I shall return.
- Under cover of a letter dated 21 June 2014 Mr Etridge sent Mr Greig a copy of the order of Lewis J dated 18 June 2014.
The applications to set aside
- On 26 June 2014 Mr Greig responded to Mr Etridge's letter of 21 June 2014 with two letters. The first letter stated, among other things:
"1. I am, and continue to be, in the dark as to the existence of any claim made by you at any stage for the above costs and of the existence of any order or judgment making me liable for their payment.
2. I have never received any correspondence, either from you, the Court or anyone else, or been served with any notice of the application you made on 23 May 2014.
4. I was completely unaware that there was to be a hearing of your application on 18 June 2014.
I shall take further steps to ask the Court to set aside the Order made in my absence."
- Mr Greig's second letter of 26 June 2014 enclosed a signed application notice of that date seeking an order to set aside the order of Lewis J "for the reasons set out below" which included the following:
"1. The Order was served on me under cover of a letter from [Mr Etridge] dated 21 June 2014.
2. The Claim to which the Order relates … is still on-going … this Case is under the management of Master Victoria McCloud. The next hearing is listed for 13 October 2014.
3. I am not aware of any claim in respect of costs.
4. I was not served with notice of the Application….
5. I was not sent any papers relating to the Application.
6. I was not notified by the court or Mr Etridge or anyone else of the hearing of the Application on 18.06.14."
- The witness statement on which Mr Greig relied at the hearing before me was one dated 7 October 2014 and written in the third person. It stated (paragraph 40) that at this time "He believed that his case was on-going …. He thought that the Second Defendant was in no position, therefore, [to] apply for costs. It goes without saying that the Claimant, at that stage, was unaware of the existence of the Strike Out Order [of Wilkie J.]"
- On 7 July 2014 Mr Greig wrote to Mr Etridge seeking copy documentation, including the order of Wilkie J. On 8 July 2014 Mr Etridge replied, stating that "Your claim against me was struck out by the Order of Mr Justice Wilkie, date stamped on 8 April 2014. I enclose a copy for your files. There is nothing more I need add. Your claim against me is now over." The enclosed copy order did indeed bear a court seal with the date of 8 April 2014. No other documentation was provided.
- Mr Greig wrote again to Mr Etridge on 15 July 2014 stating that he would be "applying for the Order [of Wilkie J] to be set aside and sanction relief on the grounds already communicated to you". He asked Mr Etridge to provide further documentation. Mr Etridge replied on 17 July 2014 without providing any further documentation. In relation to the application and order to strike out, Mr Etridge stated "You acknowledged receipt of my application to strike out and yet chose not to adduce any evidence to oppose it and, furthermore, did not bother to appeal the strike out Order in time…."
- On 21 July 2014 Mr Greig wrote to Mr Etridge giving notice that the hearing of his application to set aside Lewis J's order was listed for 30 July 2014, and that he was in the process of issuing an application to set aside Wilkie J's order. Mr Greig referred to the copy of that order sent to him by letter of 8 July 2014 stating that "The copy you sent me was the first time I had ever had sight of this order."
- Mr Greig's application notice of 21 July 2014 sought an order "To set aside and grant sanction relief in respect of" Wilkie J's order of 7 April 2014. The application notice stated that Mr Greig would rely on the following information, which he verified by a statement of truth:-
"1. A copy of the order was sent to me under cover of a letter from the Second Defendant dated 8 July 2014. I had not seen the order before.
2. I was never served with the Second Defendant's notice or with the written evidence filed in support of the application notice.
3. I was never informed of the hearing on 7th April and did not therefore attend."
- Mr Greig's witness statement of 7 October 2014 recounted the sequence of dealings he had with the Master's Support unit between 26 March and 13 May 2014 (paragraphs 11 to 15 above) and stated that the order of Wilkie J had been made in the meantime "completely unbeknown to him". Mr Greig said that he had not been present at the "hearing" of that application "because he did not receive notice of the hearing date of the application and had no idea that it was taking place." Mr Greig's statement referred to the recitals in Wilkie J's order and suggested that these showed that the application had been "decided on the basis of the Witness Statement supplied by the Second Defendant and its single exhibit."
- Mr Greig's witness statement further stated that "as well as not being notified of the hearing he did not receive a copy of the Order either. Had he done so, he would have been able to make a more timely application for sanction relief and would certainly have done so." Mr Greig's statement went on to address in some detail the merits of the original striking out application, and the reasons why he asserted that no order to strike out should have or should be made.
The striking out order
- It was common ground at the hearing that it was logical and convenient to deal first with Mr Greig's application in respect of this order, which was one made without a hearing.
- Procedural rules relevant to this application are to be found in CPR 3, 6, 23 and Practice Direction 23A.
- The general rule is that an application notice must be filed (CPR 23.3(1)) and a copy must be served on the respondent (r. 23.4(1)) as soon as practicable after filing (r. 23.7(1)(a)). Methods of service of documents other than a claim form are provided for by CPR 6.20 and PD6A. The deemed timing of service of documents is dealt with by CPR 6.26.
- CPR 23.8 provides that-
"The court may deal with an application without a hearing if –
(a) the parties agree as to the terms of the order sought;
(b) the parties agree that the court should dispose of the application without a hearing, or
(c) the court does not consider that a hearing would be appropriate."
- An application notice must include a request for a hearing or a request that the application be dealt with without a hearing: PD23A paragraph 2.1(5). If the notice requests that the application be dealt with without a hearing PD23A contains further relevant provisions as follows:-
"2.3 On receipt of an application notice containing a request that the application be dealt with without a hearing, the application notice will be sent to a Master or District Judge so that he may decide whether the application is suitable for consideration without a hearing.
2.4 Where the Master or District Judge agrees that the application is suitable for consideration without a hearing, the court will so inform the applicant and the respondent and may give directions for the filing of evidence. (Rules 23.9 and 23.10 enable a party to apply for an order made without a hearing to be set aside or varied.)
11.2 Where rule 23.8(c) applies the court will treat the application as if it were proposing to make an order on its own initiative."
- The procedure governing orders made on the court's own initiative is set out in CPR 3.3 which provides as follows:
"(2) Where the court proposes to make an order of its own initiative –
(a) it may give any person likely to be affected by the order an opportunity to make representations; and
(b) where it does so it must specify the time by and the manner in which the representations must be made;
(3) Where the court proposes –
(a) to make an order of its own initiative; and
(b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days' notice of the hearing.
(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4) –
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application.
(6) An application under paragraph (5)(a) must be made –
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application."
- The court's general case management powers allow it to extend time for an application under CPR 3.3(5)(a). CPR 3.1(2)(a) provides that the court may, except where the Rules provide otherwise "extend … time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)." Where an application to extend time is made after the specified period has expired, the Court in deciding the application will have regard to the principles concerning relief from sanctions provided for by CPR 3.9: see Sayers v Clarke-Walker  EWCA Civ 645;  1 WLR 3095, . The reason is that whilst such an application does not necessarily amount, strictly speaking, to an application for relief from sanctions the refusal of the application will have consequences similar to those of a sanction and it is better to adopt a common approach.
- CPR 3.8(1) provides that "Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction." CPR 3.9(1) sets out the circumstances which the court will consider on an application for relief, namely: "all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders." An application for relief from sanctions must be supported by evidence: CPR 3.9(2).
- In Denton v T H White Ltd  EWCA Civ 906,  1 WLR 3926 the Court of Appeal gave guidance on the approach the court should take when dealing with an application for relief from sanctions. The right approach consists of three stages, as summarised in the joint judgment of Lord Dyson MR and Vos LJ at :
"The first stage is to identify and assess the seriousness and significance of the 'failure to comply with any rule, practice direction or court order' which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate "all the circumstances of the case, so as to enable [the court] to deal justly with the application including [the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.]"
- CPR 3.10 deals with errors of procedure "such as a failure to comply with a rule or practice direction". Where there has been such an error it "(a) … does not invalidate any step taken in the proceedings unless the court so orders and (b) the court may make an order to remedy the error." It is open to the court to waive the error in procedure.
- Ms Meech, for Mr Greig, drew attention to the peculiar procedural chronology in this case, including the fact that for some of the time the matter was being dealt with both by the Master and by a judge "each apparently acting without knowledge of the other's orders". However, she did not suggest that these unusual features invalidated the order of Wilkie J or any other aspect of the proceedings. Rather, she relied on Mr Greig's witness statement of 7 October 2014 and submitted that:-
i) Mr Etridge's application to strike out had not been served on Mr Greig and the order should be set aside on account of that procedural failing;
ii) the application had been dealt with by the court without a hearing under CPR 23.8(c), that is, because the court considered that a hearing was not appropriate;
iii) the court had however failed to inform the parties that it proposed to deal with the application in that way, which represented a breach of PD23A paragraph 2.4; Mr Greig had thus been unaware that the matter was to be so dealt with and had no opportunity to put in representations before Wilkie J made his order;
iv) the effect of 23PD paragraph 11.2 was that the order was to be treated as one which the court had decided to make of its own initiative pursuant to CPR 3.3(4), with the consequence that Mr Greig enjoyed the right provided for by CPR 3.3(5) to apply to have the order set aside, varied or stayed;
v) although the deadline for such an application was 7 days after service of the order (CPR 3.3(6)(b)), the order was not served on Mr Greig by the court and/or not received by him until he received Mr Etridge's letter of 8 July 2014; the order had failed to state in accordance with CPR 3.3(5)(b) that Mr Greig had a right to apply to have it set aside, varied or stayed; Mr Greig nonetheless made his application shortly after he received the order; against this background the court should extend time if and so far as necessary until the date of Mr Greig's application notice of 21 July 2014 and hear Mr Greig's application to set aside the order;
vi) besides the procedural points made in support of the application, the strike out order should be set aside on its merits "as it was unjustified given the history of the matter and Draconian without first imposing an unless order".
- Mr Etridge maintained that he had acted properly throughout and that there was no basis on which to set aside the order. He stated that Mr Greig was well aware of the strike out application as it had been sent to him by post. He said that Mr Greig knew that the application was to be dealt with on the papers without any hearing, because that is what Mr Etridge had asked for. Mr Etridge's position was that the order of 7 April had been served on Mr Greig by first class post, by the court, in April 2014. In his witness statement of 24 July 2014 Mr Etridge asserted, with reference to Mr Greig's claim that he had not seen the order before receiving it under cover of the letter of 8 July 2014, that Mr Greig had "knowingly and deliberately made a false statement to the court." Mr Etridge's witness statement of 6 October 2014 described Mr Greig's claim as "a barefaced lie". As to the substantive merits of the strike out order Mr Etridge repeated the grounds on which he had originally relied.
- In the absence of any submission by Mr Greig that the order of Wilkie J was invalid due to the stay imposed by the Master's Order of 31 March 2014, I saw no reason so to hold. I did not hear argument on this point but it seems to me that the failure to lift the stay before determining the application to strike out is properly to be regarded as an error of procedure within the meaning of CPR 3.10 which does not invalidate the order unless the court orders that it should.
- Mr Greig's complaint of a failure to serve the strike out application was a technical point of no substantive merit. It is true that the evidence did not establish either that the application notice had been filed with the court or that it was served on Mr Greig by a method permitted by CPR 6.20. However, it was clear that Mr Greig had received copies of the application notice and witness statement in final form well in advance of the date on which the application was decided. He had ample notice of what Mr Etridge was seeking and of the evidence relied on in support. Any failure to file and serve represented an error of procedure which could and should properly be waived pursuant to CPR 3.10.
- I was however persuaded by Ms Meech's submission that the application had been dealt on the papers without agreement and hence under CPR 23.8(c). Mr Greig clearly knew that Mr Etridge wanted the matter dealt with without a hearing, but the order clearly was not agreed nor was it suggested that Mr Greig had agreed to the application being dealt with on the papers. Accordingly, PD23A paragraph 2.4 was applicable and the court should have informed the parties, before reaching a decision, that it had agreed that the application was suitable for consideration without a hearing. In the event, the application was decided on the papers without any such notification. It is clear from his letter to Mr Etridge of 26 March 2014, which was copied to the court, that Mr Greig expected to hear further from the court before a decision was made and that he envisaged submitting evidence or at least argument in opposition to the application to strike out. I accepted that Mr Greig probably would have taken the opportunity to submit evidence or argument had it been afforded him.
- I accepted also that 23PD paragraph 11.2 has the effect, among others, that the court may decide to determine an application without a hearing under CPR 23.8(c) and without giving an opportunity to make representations; and that if it does so the provisions of CPR 3.3(5) apply. Hence, any party affected by an order made under these circumstances has a right to apply to set aside (or vary or stay) the order, and the order must contain a statement of that right. Mr Greig had such a right, exercisable within 7 days after service of the order on him.
- If Mr Etridge's case was correct, however, the order had been served within a few days of being made with the result that Mr Greig's application was a very long way out of time. On Mr Etridge's case there was no excuse for the delay, and Mr Greig was lying to the court about the matter. In support of his case Mr Etridge adduced evidence, including a letter from the Courts and Tribunals Service, Queen's Bench Associates Group, that it is the court's standard practice to send copies of all orders to all parties by DX or first class post if the address is within the jurisdiction. Similar responses resulted from enquiries made on Mr Greig's behalf, and in response to those inquiries a member of the court staff wrote on 19 August 2014 that the order of Wilkie J had been sent by first class post to both parties' addresses on 7 April 2014. A copy of this letter was exhibited to Mr Greig's statement of 7 October 2014. It enclosed a copy of the order, sealed on 7 April.
- I have no doubt that the court's standard practice is as stated in the evidence, nor do I doubt that the court staff believed this had been done on this occasion. It is clear also that a copy of the order of 7 April 2014 was posted to Mr Etridge, and received by him on or before 15 April 2014. However, no record of any letter to Mr Greig was available; the evidence was that generally only the order is sent, without a compliments slip or covering letter. Nor was there any other contemporaneous record of the posting to him of the copy order; no log is kept of outgoing post. Mr Greig was adamant that he had not received a copy of the order prior to his receipt of Mr Etridge's 8 July letter. The court is entitled to look with a somewhat sceptical eye on such a claim. Nonetheless, I accepted Mr Greig's evidence on this point, for the following reasons.
- If the order had been sent by first class post on 7 or 8 April it would in the ordinary course have arrived with Mr Greig on Wednesday 9 or Thursday 10 April at the latest. However, Mr Greig wrote to the court of 19 April and 9 May 2014 in terms which were plainly inconsistent with knowledge that his claim against Mr Etridge had been struck out. Mr Etridge did not challenge the authenticity of either of those letters. The letter of 19 April was expressly referred to in the letter from the Master's Support Unit of 13 May. Further, when served with the order of Lewis J dated 18 June 2014 Mr Greig responded in terms which positively asserted that the action was still ongoing, and under the management of Master McCloud, a stance completely inconsistent with knowledge that the claim had been struck out. He then signed an application notice seeking to set aside the order of Lewis J, again in terms at odds with knowledge of the order of Wilkie J. In July 2014 he wrote a letter and signed a statement of truth on an application notice both of which were similarly inconsistent with prior knowledge of the striking out. He then made his witness statement of October 2014. If Mr Etridge's case was right it would be hard to escape the conclusion that this course of conduct was one of repeated and serious dishonesty.
- It is very hard to see why, if he had received a copy of Wilkie J's order in early April, Mr Greig should have engaged in such elaborate and extensive mendacity, rather than simply responding to news that his claim had been struck out without a hearing by applying to set aside the order as, in the event, he did in July 2014. No explanation was offered by Mr Etridge. In all these circumstances my conclusion was that it was more likely than not that Mr Greig's claim that the order of 7 April 2014 did not find its way to him before he received it under cover of Mr Etridge's letter of 8 July was true.
- It does not follow from this finding that the order was not served sooner than that. Service of a document by first class post is not effected by delivery to the addressee but by placing the document in a post box, or leaving it with or delivering it to or having it collected by a relevant service provider: see CPR 6.20(1)(b) and PD6A paragraph 3.1. If the order had been posted first class by one of these methods on Monday 7 April 2014 the effect of CPR 6.26 would be that it was deemed served on Wednesday 9 April. My conclusion was however that in this case the likely reason why the order did not reach Mr Greig was that there had somehow been a glitch in the court system with the result that a copy was not posted, and for that reason it was not served in April 2014. The fact that the copy order sent by the court to Mr Etridge was sealed on 8 April lends some support to this conclusion, as it tends to undermine the evidence that the order was posted to both parties the previous day in the usual way. So also does the fact that the Master went on to make the order of 9 May, lifting the stay. This suggests that the order of 7 April had not come to the Master's attention within the month after it was made, which in turn suggests something amiss with way this file was dealt with administratively at this time.
- It was not clear on the evidence whether the provision to Mr Greig of a copy order under cover of Mr Etridge's letter of 8 July, which was a Tuesday, amounted to service of the order within the rules. Unless the letter and enclosure were posted first class there would be no such service in accordance with CPR 6.20. I concluded in any event that even assuming that first class post or another next day delivery service was used it would be just to grant the necessary extension of the time to apply to set aside prescribed by CPR 3.3(6)(b). If the documents were posted first class on 8 July, service on Mr Greig would be deemed effected on Thursday 10 July 2014: CPR 6.26. The 7 days provided for by CPR 3.3(6)(b) would have expired the following Thursday, 17 July. Mr Greig's letter of 15 July which was sent Recorded Delivery gave Mr Etridge written notice within that period of Mr Greig's intention to apply to set aside. Mr Greig's evidence was that he "submitted" his application on 21 July, a Monday. I take that to mean that it was provided to the court. Since an application is made when it is received by the court (CPR 24.5) this would make his application 4 days out of time.
- On this footing the delay in making the application did not represent a serious or significant default. The progress of the litigation was not disrupted by the application being a few days out of time. No steps had been taken or costs incurred meanwhile on the strength of the striking out order. Nor was the orderly progress of other litigation affected. The reasons for the delay were not spelled out in Mr Greig's statement, but it is apparent from his letter of 15 July that he was seeking further documentation from Mr Etridge, which was not provided. It is also the case that the order did not contain any statement of Mr Greig's right to apply to set aside or vary it. Treating the factors specified in CPR 3.9(1)(a) and (b) as having particular weight, there are nevertheless other weighty factors present, the most important of which are the nature of the order that Mr Greig was seeking to challenge and the circumstances in which it had been made. It would have been disproportionate and unjust in all these circumstances to deny Mr Greig any opportunity to apply to set aside an order which put an end to his entire claim against Mr Etridge, when that order had been made without a hearing and without Mr Greig having submitted evidence or representations in opposition to it as, in my judgment, he would have done if given the opportunity.
- I therefore addressed the merits of the application to set aside. No submissions were made to me as to how I should approach this task. It seemed to me clear, however, that in the circumstances of this case the right approach had to be to re-hear and decide afresh the merits of Mr Etridge's contentions that the claim against him should be struck out, taking account of the evidence presented by Mr Greig via his statement of 7 October 2014, and the submissions made on his behalf, as well as the further evidence submitted by Mr Etridge. On my findings Mr Greig had never had a full opportunity to contest the matters raised by Mr Etridge's application. Only by a re-hearing would he be afforded the hearing that justice requires. I did not in any event have any record of the reasons for the 7 April order, and it was not clear what documents other than Mr Etridge's application, witness statement and exhibit had gone before Wilkie J.
- On analysis, Mr Etridge's application notice relied on three grounds: (a) deliberate delay of the proceedings by Mr Greig, amounting to an abuse of process; (b) refusal by Mr Greig to obey the Master's order "that the estate of [Mr Stirling] be served with the claim", which was also alleged to amount to an abuse of process; and (c) that Mr Greig had his remedy, having already obtained judgment against Mr Stirling. Mr Etridge's witness statement added a fourth point, (d): that the claim against him was entirely lacking in merit.
- Taking the last point first, it is unusual for such an assertion to be made at such a late stage of proceedings. Claims that are said to lack any merit are commonly the subject of applications for summary judgment or striking out much earlier in proceedings. Here, it would be quite impossible to determine on the basis of the material presented in Mr Etridge's witness statement and exhibit whether he is justified or not in his complaints that the claim against him lacks merit. No supporting detail whatever was provided.
- The position is similar with regard to the delay point, which I have labelled (a). Whilst there is no doubt that the action has taken a long time Mr Etridge's evidence in support of the allegation that Mr Greig had deliberately delayed the case was little more than assertion. I have quoted above the principal complaints of delay contained in Mr Etridge's witness statement. They give no or no adequate supporting detail. Mr Greig disputes what is alleged. He also points out with some force that it seems paradoxical for Mr Etridge to have made this complaint in March 2014, when the directions given at the CMC provided for a trial window in April 2014.
- Mr Etridge maintained in his statement of 12 March 2014 that the claim was not ready for trial in that window but it was unclear on what basis he made that assertion. His evidence was that witness statements had been exchanged in 2012. The exhibits to Mr Greig's statement included a letter from the court of October 2013 setting a trial date. It seemed to me that it was simply impossible for the court to reach a just conclusion in favour of Mr Etridge on this issue on the limited material presented by him.
- Points (b) and (c) above are related, but separate. I take point (c) first, approaching it on the footing that the claim against Mr Etridge is an arguable one and ignoring for the time being the direction given by the Master at the CMC of 2 August 2013. Mr Etridge's grievance is, in summary, that Mr Greig could and should obtain full satisfaction by taking steps to enforce his default judgment against the estate of Mr Stirling, instead of pursuing Mr Etridge. It may be that in some circumstances a court would hold that the existence of a money judgment against one defendant who was well able to satisfy the claim in full would justify dismissing an arguable claim against another defendant liable for the same sums. In appropriate circumstances it could perhaps be said that to pursue the second defendant in such a case would amount to an abuse. If so, I do not consider that evidence such as that contained in Mr Etridge's short statement of 12 March 2014 would be enough to justify such a conclusion. So far as it concerns Mr Stirling's wealth it is again no more than assertion, containing no supporting detail. It makes no attempt to deal with what assets Mr Stirling or his estate had or have, or how or where the judgment might be enforced against such assets.
- As it is, Mr Greig's statement of 7 October 2014 contains evidence which tends to suggest that Mr Stirling's estate is not a substantial one and that enforcement steps might well prove futile. The statement certainly contradicts Mr Etridge's assertion that by virtue of the default judgment Mr Greig "has his remedy" against Mr Stirling. I refer to documentary evidence exhibited by Mr Greig relating to the Cyprus probate proceedings referred to in Mr Etridge's evidence. Mr Greig exhibited a document in Greek and what appeared to be a translation, described by him as "a translation of the Cyprus Probate Order". The origin of the documents was not explained. However, the latter did appear to be a translation of a court order recording that on 18 April 2013 the District Court of Limassol had "ratified" the Last Will and Testament of Mr Stirling and granted the administration of his estate to Mrs Raidie Margaret Keogh from Limassol as Executrix. The Executrix was said to have "sworn in for the amount of €45,001,42 and that the decedent has died testate on or around the 27th April of the year 2011."
- Mr Greig's statement said that the translation had been provided to Mr Etridge and that it showed that "even if the First Defendant is dead [a point which Mr Greig seeks to dispute], there is, on the face of things, little to enforce against." Mr Greig went on to say that it now looked highly likely that the difficulties and costs involved in trying to recover from Mr Stirling would be out of proportion to any possible recoveries. He also asserted that the costs of seeking to enforce in Cyprus were beyond his means. He said that attempts to effect delivery of letters sent Recorded Delivery on Mrs Keogh had been unsuccessful.
- That evidence, albeit less than wholly satisfactory, made it impossible in my judgment for the court to say that Mr Greig "has his remedy" against Mr Stirling. It certainly could not be said on the material presently available that Mr Greig's approach to enforcement of the default judgment against Mr Stirling is in and of itself an abuse of the court's process or otherwise such as to justify an order striking out his claim against Mr Etridge. On the limited evidence adduced by the parties there appear to be both a genuine issue as to the wealth of Mr Stirling, and the value of his estate, and reasonable grounds for concluding that attempts to enforce against his estate in Cyprus would yield little if anything of value.
- This brings me to the point I have labelled (b) above: non-compliance with the Master's direction of 2 August 2013. There certainly has been non-compliance by Mr Greig for well over a year with the Master's direction quoted in paragraph 4 above. My conclusion was however that the dismissal of Mr Greig's claim against Mr Etridge without investigation of its merits would be an excessive sanction for a procedural default in the conduct of Greig's claim against Mr Stirling.
- In reaching that conclusion I bore in mind the following. First, the Master's order was a procedural direction designed to regularise the statements of case in relation to the claim against Mr Stirling in the light of information or evidence accepted by the Master that Mr Stirling had died. It did not itself require service of the claim as so amended and in any event was not a direction designed or intended to have an impact on Mr Greig's claim against Mr Etridge, by requiring Mr Greig to pursue enforcement against Mr Stirling's estate instead of proceeding against Mr Etridge. Directions were given for the claim against Mr Etridge to proceed to trial regardless of any steps taken vis a vis Mr Stirling's estate.
- Secondly, the fact that the claim against Mr Etridge has not yet come to trial is not causally related to Mr Greig's failure to amend his statements of case against Mr Stirling. True it is that the breach has had some impact on these and other proceedings, as time has been taken up with the application to strike out and the present application to set aside. No hearing dates have however been lost or jeopardised.
- Thirdly, there is an explanation offered of the failure to comply. Mr Greig says he is doubtful as to whether Mr Stirling has died. His statement gave details of enquiries made in that regard in and after September 2013. He said that no death certificate had apparently been presented in Cyprus, and gave details of enquiries made by him or on his behalf with the police and British Consulate Florida (where Mr Stirling is said to have been resident), with the UK General Register Office, and with the main Jewish cemetery circuits, none of which had produced evidence that Mr Stirling was dead. He exhibited correspondence with Mr Etridge in which he sought further evidence as to Mr Stirling's death, and indicated that he might seek to persuade the Master to discharge or vary her direction that the statements of case be amended. This explanation is no justification for non-compliance; the appropriate course if Mr Greig had evidence to suggest that the Master had proceeded on a false basis was to apply to stay or discharge or vary her order. However, this explanation does mean that the court is not faced with a litigant who is failing to comply without any reason at all. And in this context, fourthly, I bore in mind that Mr Greig has been acting in person throughout most of the relevant period.
- Finally, standing back from the detail it seemed to me that in all the circumstances as they now appear the it would be unjust and disproportionate for the court to respond to this breach, on the first occasion it was brought before the court, by dismissing altogether a claim against Mr Etridge which I must assume to be arguable and which appears to be substantial. Not only was it clear that Mr Greig's breach did not involve a failure to comply with an order to pursue enforcement against Mr Stirling's estate, which might have been to the advantage of Mr Etridge, it also appears that the estate's value is very modest in any event.
- Having reached these conclusions I set aside the order of Wilkie J. Having done so it was not necessary for me to consider whether Mr Greig should be granted relief against sanctions, on the assumption that the order of 7 April 2014 represented a sanction for non-compliance with the order of Master McCloud.
- I consider below what should happen next, but first I deal with Mr Greig's application to set aside the costs order of 18 June 2014.
The costs order
- I can take this more shortly.
- The costs order was made at a hearing which was not attended by Mr Greig. The court is entitled to proceed in such circumstances. CPR 23.11(1) provides that "Where … any respondent fails to attend the hearing of an application the court may proceed in his absence." CPR 23.11(2) provides however that where the court proceeds in the absence of a party and makes an order at the hearing "the court may, on application or of its own initiative, re-list the application". The power to "re-list" is a power to re-hear the application in full and make such order as thought appropriate: Riverpath Properties Ltd v Brammall, The Times, February 16, 2000.
- Having decided as I did to set aside the order striking out the claim against Mr Greig it was plainly appropriate to exercise these powers in respect of the application for the costs of the claim, and to set aside that order. The former had provided the rationale for the latter.
- I record, although it is not necessary to my decision, that I accepted that the reason why Mr Greig did not attend was, as he asserted in his statement of 7 October 2014, that he did not know about the costs application, and did not receive a copy of Mr Etridge's letter of 15 April 2014, or Wilkie J's order of 13 May 2014, or the documents posted by Mr Etridge on 11 June 2014.
- My conclusions as to the first and second of these documents were that they were not sent. As to the documents posted on 11 June, I was satisfied that the steps taken by Mr Etridge to serve them (paragraphs 19 and 20 above) were good service in accordance with CPR 6.20, service being deemed effected on Friday 13 June 2014 (CPR 6.26). However, although at the time of the hearing before Lewis J it appeared from the Proof of Delivery Certificate that the documents had in fact been delivered to Mr Greig on Saturday 14 June it later emerged that they had not.
- Mr Etridge's witness statements of 24 July 2014 and 6 October 2014 and their exhibits made clear that although Royal Mail had attended Mr Greig's address to deliver this material it had not been delivered but brought back to the office. Normal practice would have been to leave a "P739 card" for the item to be collected at the office. However, the documents were not collected, and they were eventually returned to Mr Etridge. I was not asked to make any finding that Mr Greig had sought to evade service. The evidence suggested that Royal Mail had found no-one at the address when they called on Saturday 14 June 2014.
- I have remitted to the Master Mr Etridge's application for permission to amend his Defence. This was also listed for hearing before me on 13 October but there was no time to deal with it. The Master will need to give fresh case management directions. It seemed to me appropriate for the Master to consider in that context what steps should now be taken with regard to her order for amendment of the statements of case and the claim against Mr Stirling generally. If Mr Greig wishes to seek the revocation or variation of paragraph 2 of the order made at the CMC he should apply to the Master. If he does not, then the Master may consider an "unless" order appropriate.
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