Summary

The failure by a judge to give reasons for not granting a party relief from that party's non-compliance with an unless order and striking out his claim vitiated the judge's decision.

Facts

The appellant architect (V) appealed against a decision of a judge dismissing his appeal against an order striking out his claim against the respondents (S) and an order that he pay the costs of the proceedings. S had engaged V to install a kitchen and V ordered cabinets for the kitchen from a third party supplier. A dispute arose between the parties as to the works and V brought a claim for sums that purportedly represented his professional fees and the cost of the cabinets that he had ordered and supplied to S. During the proceedings an unless order was made requiring V to make a £500 contribution towards S's costs. V unsuccessfully applied to have that order set aside and another unless order with a later date for compliance was made. V posted a cheque to S's solicitors but it was not received until after the date specified by the unless order. V's position at all relevant times was that he had posted the cheque by first class post to S's solicitors the day before the date specified by the unless order. V unsuccessfully applied for relief from non-compliance with the unless order and his claim was struck out for failure to comply with the unless order. An order was also made that V pay the costs of the proceedings.

Held

(Jackson L.J. dissenting on remittal) It was apparent that the order refusing V relief from his non-compliance with the unless order and striking out V's claim had been made without a hearing which was not normally to be recommended, Collier v Williams (2006) EWCA Civ 20, (2006) 1 WLR 1945 considered. The order had been made without reasons being given and without reasons the court was not in the position to say whether the judge who had made the order had considered the matter before her on the merits or properly grappled with it. Further, the order striking out V's claim was defective as it did not inform V that he had the right to seek to have the order varied or discharged. In the circumstances of the instant case, in particular where there was an evidential dispute as to whether V had posted the cheque in time, it was inappropriate for the court to determine whether it was appropriate to grant V relief from strike out and it was appropriate to remit the matter for reconsideration.

Appeal allowed