Success for the Construction team following the Defendant’s failure to comply with Court directions

22nd Jul 2021

The Construction team has enjoyed recent success in a County Court case in a claim for just under £18,000 and a counterclaim of approximately £71,000.

The proceedings related to building works carried out by the Claimant at the Defendant’s property. The Claimant had brought a claim for outstanding sums due after completion of the works and for damages for the cancellation of a second contract for additional works.

The Claim was defended on the basis of alleged defects to the works and the Defendant contended that because of those alleged defects he had lost faith in the Claimant’s ability to properly perform the works under the second contract and so was entitled to cancel this. The Defendant’s counterclaim was for alleged losses arising from the alleged breaches, all of which was strenuously opposed by us.

Rogers & Norton’s Construction team acted for the Claimant and made a successful application for the Defence and Counterclaim to be struck out as a result of the Defendant’s failure to comply with Court directions. The Defendant was over eight months late in providing its disclosure and this had effectively prevented the Claimant from being able to properly prepare for trial, which was due to take place less than a month from the date of the hearing of the Claimant’s application. The Claimant relied on the well-known authority of Denton v TH White Ltd [2014] EWCA Civ 906, which sets out the following 3-stage test for the Court apply when considering whether to grant relief from sanctions:

Stage 1: Is the breach “serious or significant”?

Stage 2: If it is, why did the default occur?

Stage 3: Consider all the circumstances of the case in order to deal with the application “justly”, including (a) the need for litigation to be conducted efficiently and at proportionate cost and (b) the need to enforce compliance with rules, directions and court orders.

The Claimant also relied on British Gas Trading Ltd v Oak Cash & Carry Ltd [2016] EWCA Civ 153. In that case, the Court of Appeal held that a fee earner’s absences due to family illness were not a good reason for the late filing of a Pre-Trial Checklist which had resulted in the loss of the trial date and accordingly refused to grant relief from sanctions.

The Judge found that the Defendant’s breach of the directions was serious and significant and that there was no good reason for it. In all of the circumstances of the case he agreed that the defence and counterclaim should be struck out.

The Judge’s findings resulted in a judgment of over £20,000 (including interest) being entered in favour of the Claimant, and the defence and counterclaim being struck out. The Claimant was also awarded a substantial proportion of its legal costs.

This is a salutary lesson in the importance of complying with Court orders and, should you find yourself in breach of an order, remedying the breach as soon as possible and making a prompt application to the Court for relief from sanctions.

If you are involved in Court proceedings, whether in a construction case or other matter, our Dispute Resolution team can assist you in navigating any directions you have received from the Court and, if for any reason you have not complied, we can advise as to mitigating the impact of any breach on your case. We can also assist should you find yourself with an uncooperative opponent who is failing to meet deadlines imposed by the Court.


*This article is provided for general information purposes only and does not constitute legal or any other professional advice.