PRACTICE — Statement of case — Striking out — Non-compliance with “unless” order — Whether sanction automatically effective

Marcan Shipping (London) Ltd v Candida Corpn and another [2007] EWCA Civ 463

CA: Pill, Keene and Moore-Bick LJJ: 17 May 2007

The sanction embodied in an “unless” order in traditional form took effect without the need for any further order if the party to whom it was addressed failed to comply with it in any material respect. Unless the party in default had applied for relief, or the court itself decided for some exceptional reason that it should act of its own initiative, the question whether the sanction ought to apply did not arise.

The Court of Appeal so held in a reserved judgment dismissing an appeal by the claimant, Marcan Shipping (London) Ltd, from the dismissal by Morison J of an action in accordance with an order that the action be dismissed unless the claimant gave disclosure of documents and provided security for costs, as requested by the defendants.

MOORE-BICK LJ said that there was no evidence before the judge to explain why the claimant had failed to comply with the order, or what steps had been taken to enable it to do so; nor was any application made to the court under CPR r 3.8 for relief from the sanction imposed by the order. The scheme of CPR Pt 3 relating to conditional orders was both clear and salutary in its effect, namely, that such orders meant what they said, that the consequences of non-compliance took effect in accordance with the terms of the order, but that the court had ample power to do justice under r 3.8 on the application of the party in default, or, in an exceptional case, acting on its own initiative.

KEENE LJ agreed and PILL LJ delivered a concurring judgment.

Appearances: Neil Henderson (Jackson Parton) for the claimant; Graham Charkham (Thomas Cooper & Stibbard) for the defendants.

Reported by: B O Agyeman, barrister