In the matter of Bankside Hotels Ltd & Ors v Maurice Saleh Gourgey & Ors (2017)
A judge had been entitled to refuse to entertain a second application for relief from sanctions where there had been no material change of circumstances since the first application.
The appellants appealed against orders made in consequence of their failure to respond adequately to requests for further information made by the respondents in respect of the appellants' defences to three unfair prejudice petitions.
The respondents had applied for an order requiring the appellants to answer the requests. That application was disposed of by a consent order, which required the appellants to provide a full response to the requests by 21 March 2014. When the appellants failed to do so, Rose J made an unless order requiring the appellants to file and serve their responses by 22 April 2014, failing which their defences would be struck out. The appellants served a purported response shortly before the deadline. The respondents issued an application seeking directions to be given for the future conduct of the proceedings on the footing that the defences stood struck out. The appellants issued cross-applications seeking relief from sanctions. Following the hearing of those applications, Mr Monty QC determined that the appellants' response was deficient in various respects. However, he granted relief from the strike-out sanction on strict conditions, including that the appellants would, by 4 December 2014, serve a full and complete response to the requests. The appellants served their purported full and complete response within time, but the respondents took issue with the adequacy of the response, and applied for relief on the footing that the defences remained struck out. The appellants applied for the second time for relief from sanctions. Simon J held that the second response was not a full and complete response, that the conditions laid down in the order by Mr Monty QC for the grant of relief from sanction had not been met, and that the defences accordingly remained struck out as from 22 April 2014. He refused the appellants' application for relief from sanctions, on the basis that there had been no material change of circumstances since the order made by Mr Monty QC, which remained in force.
The appellants submitted that there was nothing in CPR r.3.9(1) imposing any requirement that there should be any change in circumstances between one application for relief and another.
There might be some force in the appellants' argument if the order of Mr Monty QC had applied a new sanction different from the strike-out sanction imposed by Rose J. The order merely activated the original strike-out sanction by declaring that the defences were to stand struck out subject to the relief application, and then providing that, if the appellants filed and served a full and complete response to the requests by 4 December 2014, the defences would be reinstated. That was no new or different sanction from that imposed by Rose J. The only sanction from which the appellants could seek relief was that imposed by Rose J; they had conditionally achieved relief, but the condition was never satisfied. The application to Simon J was a second application for relief when the first application to Mr Monty QC had failed (or had only succeeded on conditions that were never fulfilled). A defendant who had already made one application for relief from sanctions had to show a material change of circumstances before he could make a second such application, Thevarajah v Riordan  UKSC 78 followed. In the instant case there had been no material change of circumstances since the order of Mr Monty QC, or indeed since the order of Rose J.
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