Turner Parkinson Litigation Team Act For Claimant In Recent 'Birch v Beccanor Limited & Dixon' Case

The Commercial Litigation team at Turner Parkinson acted for the Claimant in the recently reported case of Birch v Beccanor Limited & Dixon [2016] EWHC 265 (Ch) which sets out the consequences of failing to comply with orders of the Court. Judgment was handed down on 4th February 2016.

Ian Fitzpatrick together with James Pickering, of Enterprise Chambers, represented Mr Birch, the Claimant in this matter. The claim was for unpaid sums of £185,000 (plus interest) due following the sale of a business. The defendants, Beccanor Limited & Mr Dixon admitted breach of the obligation to pay in the defence but sought to allege breaches of warranty. The defence did not plead a counterclaim in respect of damages for the alleged breaches of warranty. The trial date was fixed for three days commencing on 17th February 2016.

The purpose of the hearing on 4th February 2016 was to deal with the defendants’ applications to:

  1. Adjourn the trial date and relist it on a date when the defendants’ witnesses were all available and after the conclusion of further procedural steps;
  2. Amend the defence and to bring a counterclaim;
  3. Apply for relief from sanctions and be granted an extension of time to serve witness statements.

In terms of the application to vacate the trial date, Mr Justice Norris stated that making this application one month before the commencement of a trial was not one which he regarded as ‘meritorious’. The listed trial date came about as a result of the defendants’ solicitor’s failure to comply with the order of the Court and their failure to inform their own Counsel and his clerk of the dates of availability. Mr Justice Norris stated that the defendants discovered the consequences of this failure on 23rd October 2015 and it was simply unsatisfactory that they waited until 4th January 2016 to apply to vacate the trial.

Mr Justice Norris considered that the application to amend the defence and bring a counterclaim, if granted, would disrupt a fixed trial date. Mr Justice Norris said that the suggested amendments reflected arguments which were advanced by the defendants in correspondence in June 2014, on the basis of material they had had from as early as January 2013. Therefore it was considered that the suggested amendments could have been incorporated in the original pleading.

Mr Justice Norris considered the prejudice to the Claimant were the amendment to be allowed and likened it to the prejudice which Lloyd LJ referred to in his judgment in the case of Swain as ‘being mucked about’. In relation to this prejudice, Mr Justice Norris asked ‘why should his case (properly conducted in accordance with the orders of the Court) be delayed by parties who have had many months to consider how to put their case (including in response to requests to clarify their position) but now have changed their minds?’

In terms of witness statements, Mr Justice Norris said that no real explanation had been offered by the defendants as to why the Court’s order was not adhered to in the first place and that this was a conscious and inexplicable breach of the order of the Court.

Mr Justice Norris refused all applications made by the defendants and held that if CPR 3.9 was to have any meaning, this sort of case was when it had to apply. He concluded that:

‘…refusing relief from sanction does not produce an unjust outcome. It simply means that the trial will be confined to such issues (though I cannot see any of substance), as arise on the defendants’ pleaded case…that is not an unjust outcome for them: and it is just towards the claimant and other litigants’.

The outcome of the hearing on 4th February 2016 was not only a victory for Turner Parkinson LLP and Mr Birch but also provides an important lesson for practitioners who encounter problems in complying with the terms of a Court order and seeking subsequent relief from the sanctions imposed in the event of non-compliance.