![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Diriye v Bojaj & Anor [2020] EWCA Civ 1400 (Hearing 15 October 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1400.html Cite as: [2021] 1 WLR 1277, [2021] WLR 1277, [2020] EWCA Civ 1400, [2021] 3 All ER 1019, [2020] WLR(D) 596 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[View ICLR summary: [2020] WLR(D) 596]
[Buy ICLR report: [2021] 1 WLR 1277]
[Help]
ON APPEAL FROM
Central London County Court
(HHJ Lethem)
Strand, London, WC2A 2LL |
||
B e f o r e :
LADY JUSTICE NICOLA DAVIES
and
LADY JUSTICE ROSE
____________________
MR ABDIRAHIM ALI ![]() |
Appellant |
|
- and - |
||
(1) MS KALTRINA BOJAJ (2) QUICK-SURE INSURANCE LIMTED |
Respondents |
____________________
Mr David Fardy (instructed by DWF Law LLP) for the Respondents
Hearing Date: 15th October 2020
____________________
Crown Copyright ©
LORD JUSTICE COULSON:
INTRODUCTION
THE FACTUAL BACKGROUND
"The claimant shall be debarred from relying upon the facts of impecuniosity for the purposes of determining the appropriate rate of hire unless
(i) By 4:00pm on the 4th April 2018, the claimant files and serves a reply to the defence setting out all facts in support of any assertion that the claimant was impecunious at the commencement of and during the hire of the vehicle in question, and
(ii) By 4:00pm on the 18th April 2018, the claimant serves copies of the following documents which are in his control:
1) Copies of the claimant's wage slips or equivalent documentation evidencing the approximate level of available income to the claimant for a period of three months pre-accident and covering the period of hire, and
2) Copy bank and credit card statements for a period of three months pre-accident and covering the period of hire."
"Royal Mail Signed For 1st Class … items will only be delivered to an addressee or their representative once a signature or similar proof of delivery has been gained. Please note that Royal Mail Signed For 1st Class… [is] not a tracked service; it simply provides a way of gaining the service called Proof of Delivery…"
"We aim to deliver … a First Class item the next working day after it has been posted."
As to delivery of "Signed For 1st Class" post, paragraph 9.4 of the Scheme states:
"We aim to deliver … a Royal Mail Signed For 1st Class item the next working day after it has been posted."
In other words, the intended delivery date is the next working day for both types of service. That is confirmed by Table 5 in Section 17 of the Scheme, which defines "the due date" as the "next working day after posting."
"13. The third stage is to evaluate all the circumstances. Here, not only do I take into account all the matters that were dealt with before but I am also asked to take into account by the defendants the fact that there are no details of income. Mr Peter says that that is because there is none, that he has no evidence of his income, but this man is a minicab driver. He does not exist in a vacuum. He must be given work by somebody. He must be employed, even if it was as a self-employed contractor, by a firm of minicab drivers. There must be a licence, there must be some record of when he worked. He must be paid on some basis and there must be a record because there must be transactions between him and his cab company.
14 I disagree that there are no records, and if there are no records, there should be and this is a man who should be forced to have records. He has to pay tax. How is he paying tax? What is he paying tax on? If he cannot produce any evidence of his income, even though he says he is a self-employed cab driver, that does not mean that he is impecunious; rather the reverse. He clearly has money if he is working, so where is it and why is there no evidence of it?
15 All these matters, in my judgment, are extremely serious. It is not just a question of being a couple of days late. It is the whole way that this case has been prepared on behalf of the claimant with or without his cooperation.
16 Finally, and the overriding concern, that I have and I had when I read the papers, is that this is a road traffic accident from 2014. It was issued at the last minute in 2017 but it must have been clear to those instructing Mr Peter, Lincoln Harford, that if impecuniosity was going to be part of this case, then the information relating to it was going to be needed at the beginning, so they have had plenty of time. They have had months if not years to get this information and to ask the claimants for the information. Why they did not do so is not a matter for me but it should have been available and they should have told the claimant what the court needed if he was going to plead impecuniosity and there is no reason why it should not have been prepared properly and it clearly has not been."
(Italics provided)
THE LAW
Correct Approach to Appeals against Case Management Decisions
Service
"3.1 Service by post, DX or other service which provides for delivery on the next business day is effected by –
(1) placing the document in a post box;
(2) leaving the document with or delivering the document to the relevant service provider; or
(3) having the document collected by the relevant service provider."
"6.26 A document, other than a claim form, served within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table
Method of service | Deemed date of service |
1. First class post (or other service which provides for delivery on the next business day) | The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day… |
3. Delivering the document to or leaving it at a permitted address |
If it is delivered to or left at the permitted address on a business day before 4.30p.m., on that day; or in any other case, on the next business day after that day |
"36... The objective is to minimise the unnecessary uncertainties, expense and delays in satellite litigation involving factual disputes and statutory discretions on purely procedural points."
Relief from Sanctions
"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider 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.
(2) An application for relief must be supported by evidence."
"26. Triviality is not part of the test described in the rule. It is a useful concept in the context of the first stage because it requires the judge to focus on the question whether a breach is serious or significant. In Mitchell itself, the court also used the words "minor" (para 59) and "insignificant" (para 40). It seems that the word "trivial" has given rise to some difficulty. For example, it has given rise to arguments as to whether a substantial delay in complying with the terms of a rule or order which has no effect on the efficient running of the litigation is or is not to be regarded as trivial. Such semantic disputes do not promote the conduct of litigation efficiently and at proportionate cost. In these circumstances, we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant. It was submitted on behalf of the Law Society and Bar Council that the test of triviality should be replaced by the test of immateriality and that an immaterial breach should be defined as one which "neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation". Provided that this is understood as including the effect on litigation generally (and not only on the litigation in which the application is made), there are many circumstances in which materiality in this sense will be the most useful measure of whether a breach has been serious or significant. But it leaves out of account those breaches which are incapable of affecting the efficient progress of the litigation, although they are serious. The most obvious example of such a breach is a failure to pay court fees. We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance. We recognise that the concepts of seriousness and significance are not hard-edged and that there are degrees of seriousness and significance, but we hope that, assisted by the guidance given in this decision and its application in individual cases over time, courts will deal with these applications in a consistent manner.
27. The assessment of the seriousness or significance of the breach should not, initially at least, involve a consideration of other unrelated failures that may have occurred in the past. At the first stage, the court should concentrate on an assessment of the seriousness and significance of the very breach in respect of which relief from sanctions is sought. We accept that the court may wish to take into account, as one of the relevant circumstances of the case, the defaulter's previous conduct in the litigation (for example, if the breach is the latest in a series of failures to comply with orders concerning, say, the service of witness statements). We consider that this is better done at the third stage (see para 36 below) rather than as part of the assessment of seriousness or significance of the breach.
28. If a judge concludes that a breach is not serious or significant, then relief from sanctions will usually be granted and it will usually be unnecessary to spend much time on the second or third stages. If, however, the court decides that the breach is serious or significant, then the second and third stages assume greater importance."
"41. We think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation. The parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new rule 3.8(4).
42. It should be very much the exceptional case where a contested application for relief from sanctions is necessary. This is for two reasons: first because compliance should become the norm, rather than the exception as it was in the past, and secondly, because the parties should work together to make sure that, in all but the most serious cases, satellite litigation is avoided even where a breach has occurred.
43. The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective. Representatives should bear this important obligation to the court in mind when considering whether to advise their clients to adopt an uncooperative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions. It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions..."
THE FIRST ISSUE: SERVICE
"The whole purpose of Rule 6.26 in so far as it relates to 1st class post is to eliminate arguments about whether a document was actually delivered on the following day or the day after or the day after that, because of the vicissitudes in the way in which the postal system works. Essentially, it provides a simple solution to that form of dispute."
I respectfully agree with that analysis. As a matter of logic, that analysis demonstrates why questions of actual delivery must be irrelevant to the "Signed For 1st Class" service. As the authorities make clear, it was to get round the sorts of difficulties that can arise in proving actual service or delivery that r.6.26 was created in the first place. Service deemed to have occurred on the second business day after posting avoids the need for the court to have to explore when the document was in fact served/delivered/signed for/acknowledged. The deeming provision is there to provide certainty, and to make the actual circumstances of delivery or receipt irrelevant.
THE SECOND ISSUE: THE EXERCISE OF THE DJ'S DISCRETION
"I had no money to repair or buy another car and all my accounts were close(d) to their overdraft limits and my credit cards had reached the maximum credit card limit. I have a bad credit rating as I have outstanding credit card bills so I could not get a loan."
CONCLUSION
LADY JUSTICE NICOLA DAVIES:
LADY JUSTICE ROSE:
Note 1 It should not be forgotten that this was a breach of an Unless Order. In the general run of civil litigation, such orders are not common. They are generally made because the judge considers that, without making an Unless Order, there is a real risk that the party who is subject to the Order will not comply with it. It is for that reason that Jackson LJ concluded in Oak Cash & Carry that the breach of an Unless Order was a pointer to its seriousness and significance. I respectfully agree with that analysis.
[Back] Note 2 This approach is in line with Jackson LJ’s conclusion in Oak Cash & Carry that the breach of an Unless Order has to be looked at in the context of the circumstances in which the Order was made, rather than in isolation. The appellant and his advisers were always aware that he needed to plead and prove impecuniosity, in order to be able to recover his claim for credit hire charges, but they failed to grapple with the issue both before and after the Unless Order was made.
[Back]