Failure to file LQ – Relief from sanctions refused

PI_Nicola_PhilipsonBy Nicola Phillipson

British Gas Trading Ltd v Oak Cash & Carry Ltd

[2014] EWHC 4058 (QB)

5th December 2014

Relief from sanctions refused where a failure to file the LQ in breach of an unless order led to the loss of the trial date.  Although the Defendant applied for relief from sanctions, there was no for the default judgment to be set aside, and no evidence in support of such an application.  In these circumstances, the court should not treat the application as though it had been made.

This was a claim for an unpaid debt for the provision of electricity,

5/11/13          Directions given to file LQs by 3/2/14

8/11/13          Trial was listed for 2 days, starting 30/4/14.

10/2/14          Defendant had not filed their LQ.  Order was made that the Defence would be struck out without further order unless the LQ was filed by 19/2/14.

18/2/14          Defendant filed their DQ

20/2/14          Defendant advised by court that had filed incorrect document.

21/2/14          Defendant’s LQ sent by fax

25/2/14          Claimant solicitors requested judgment in default

27/2/14          Defendant solicitors wrote to court apologising for mistake and requesting that the Claimant’s request not be granted.

18/3/14          Judgment in default for £211,388.61 granted.

21/3/14          Application for relief from sanctions by the Defendant (nb – no application made to set aside judgment)

15/4/14          HHJ Harris QC granted relief

The appeal had two limbs; (a) CPR 3.9 had been misapplied, and (b) the Judge had erred in setting aside the judgment when there was no application or evidence before the court.

It was noted that the application was heard in the six months between Mitchell and Denton.  Applying the 3 stage Denton test, Mrs Justice McGowan DBE noted that

  • the Defendant’s solicitors had failed to comply with the original order and the unless order, and “it cannot be said that such a breach is not either serious or significant.”
  • There was no good reason for the failure – the solicitor with conduct was experiencing personal difficulties as his wife’s pregnancy was beset by problems, but there were over 40 qualified solicitors within the firm, and he should have delegated properly, rather than to an inexperienced trainee who did not know which document to file.
  • It was accepted that the LQ may not be the most important document, but the 2 failures meant that the trial dates were lost which must be a matter of grave concern. It was also noted that the effect of not granting relief was likely to lead to satellite litigation.  In all the circumstances, there was no good reason to grant relief.

Appeal allowed on (i) – 3.9 incorrectly applied.  Also allowed on (ii) – in the absence of an application to set aside the default judgment as well as applying for relief from sanctions, the court should not simply take the view that as the application should have been brought, it would be treated as though it had.  There was also no evidence in support of such an application.

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One comment

  1. […] Nicola Phillipson considered the consequences of failing to file the Listing Questionnaire in Failure to file LQ – Relief from sanctions refused […]

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