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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Greig v Stirling & Anor [2014] EWHC 4017 (QB) (01 December 2014) URL: https://www.bailii.org/ew/cases/EWHC/QB/2014/4017.html Cite as: [2014] EWHC 4017 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
KENNETH GREIG |
Claimant |
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- and - |
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(1) ANTHONY FRANCIS STIRLING (2) ANTHONY THOMAS ETRIDGE |
Defendants |
____________________
The Second Defendant in person
Hearing date: 13 October 2014
____________________
Crown Copyright ©
Mr Justice Warby: Introduction
Factual background
"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."
"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.
"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."
"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."
"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.
"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.
"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."
"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."
The applications to set aside
"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."
"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."
"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."
The striking out order
Law
"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."
"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."
"(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 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.]"
Submissions
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".
Discussion
The costs order
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