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In the non-patent case of Fred Perry (Holdings) Limited v
Brands Plaza Trading Limited & Another [2012] EWCA Civ
224, the Court of Appeal has signalled the intent of the English
courts to require civil litigation to be pushed along at a
reasonable pace. This case concerned a "relief from
sanctions" application on behalf of defendants that had missed
numerous court deadlines and orders. The defendants in this case
had not complied with an English court procedural order known as an
"unless order". They had also failed to comply with a
number of directions set out in the case and not complied with
various English Civil Procedure Rules ("CPR"). As a
result of this non-compliance, the defences in the case had been
struck out and judgment entered for the claimant (Fred Perry). The
defendants had then applied under CPR 3.9 for "relief from
sanctions" to set aside this default judgment. The application
was made on the basis that justice would be best served by allowing
the defendants in the case to present a defence at trial and that
the appropriate sanction against them in this matter was to
penalise them in costs.
The courts' approach to such applications in the past has
been lenient. However, it was made clear by the Lords Justice in
this judgment that non-compliance with both the Civil Procedure
Rules and also orders of the court will not be tolerated. The Court
also noted that the defendants' suggestion of a costs sanction
rang particularly hollow given that they had also failed to pay
earlier costs orders and that one of the reasons given for their
non-compliance with court orders and CPR provisions was a lack of
funds. The defendants failed in their appeal and so the defences
were struck out and judgment in favour of the claimant confirmed.
Lord Justice Jackson was keen to highlight that this particular
provision of the CPR will change in a year's time. Gone will be
the rather complex multi-factorial provision that resembled a
"tick-box" exercise and in its place will be a provision
focussing very much on the judge's analysis of the facts of the
particular case in the round.
It is worth replicating the new rule in full:
"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 the circumstances of the case, so as
to enable it to deal justly with the application including the
need:
For litigation to be conducted efficiently and at
proportionate cost; and
To enforce compliance with rules, practice directions and
court orders."
Litigants have been warned.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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