Not complying with Court orders could be fatal to your claim

Things have changed over the last few months and sadly you not complying with a Court Order could be fatal to your claim.

What does complying with a Court Order mean.  Simply if the Court has provided you with directions of how to conduct your case i.e. :-

  • “Both Parties to exchange List of Documents by the 5th May 2014 (or whatever date set down by the Court)
  • Both Parties to exchange witness statements by the 6th June 2014 (or whatever date set down by the Court)   etc.”


Think about it, its quite simple really, if you don’t bother to submit your Statement by the date ordered by the Court, and you then apply to the Court to ask for permission to submit your Statement late, and, the Court refuses, that is your case over and done with no matter how good your claim.

So what happened well CPR 3.9 happened on the 1st April 2013 and the Courts were directed to consider “all the circumstances of the case, so as to enable the Courts to deal justly with an application for relief of sanction” (a relief of sanction is you making an application to the Court if you have missed complying with a direction, rule or order of the Court) however the Judges would now only consider two questions when deciding whether they should grant your application for relief of sanction) (give you extra time to comply with their original Order).  The questions the Judges HAVE TO  consider are:-

  1. Can litigation be conducted efficiently and at a proportionate cost;
  2. The necessity of  enforcing compliance with rules, practice directions and orders.

Judge Lewison giving his Judgment in the Court of Appeal in the case of Perry v. Brands Plaza Trading 2012 EWCA Cov 224 said the following:-

“Courts at all levels have become too tolerant of delays and non-compliance with orders.  In so doing they have lost sight of the damage which the culture of delay and non compliance is inflicting on the civil justice system.   The balance therefore needs to be redressed”

Judge Lewison’s comments have proved influential and in the subsequent cases of Venulum Property Investments Ltd and Space Architecture and others 2013  Mr Justice Edwards-Stuart cited Judge Lewinson by stating that he regarded the new addition to sub-paragraph (f) to the overriding objective “as requiring the court to take a more robust approach when exercising a discretion to extend time for service of a claim form or particulars of claim

Venulum v, Space Artchitecture was a professional negligence claim in which the claim form had been served in time but the particulars of claim had not.  An application was made to extend the time of service of the PoC.

Mr Justice Edwards-Stuart found 3 factors where of particular importance in considering whether the application for relief of sanction should succeed:-

  1. There had been an unexplained delay of 5 years before the Claimant had instructed solicitors.
  2. On the information and documentation before the Court the Claimant’s claim was not a strong one.
  3. The claim was a vaguely pleaded claim for bad faith

The Judge stated the following:-

“In my judgement when the circumstances are considered as a whole particularly in the light of the stricter approach that must now be taken by the Courts towards those who fail to comply with the rules following the new changes to the CPR, this is a case where the Court should refuse permission to extend time”

Shortly after this case the Judges considered the matter of non compliance again in the case of Fons HF v. Corporal Ltd 2013.   This matter involved a late application to extend time for service of witness statements only three weeks after the deadline! Although the application was successful the Judge presiding gave this stern warning that he had:-

“come very close to refusing an extension to either of the parties” and referred to the fact that the “amended Civil Procedure Rules now require the Court to pay close attention on the failure of parties….a failure to comply with a rule direction or order is itself a clear breach of the overriding objective and is likely to result in severe sanctions”.

So you can see the Courts are taking a much stricter approach, however if you are unfortunate enough to miss a direction etc set down by the Court you may still be able to obtain relief from sanction if you :-
Make an application as soon as possible after you realise your error and attach a copy of the document you were supposed to serve etc and a clear and detailed Statement in support of you application explaining why there has been a delay. The Court will consider that there are unforeseen factors which can lead to delays, but do substantiate your explanation with any physical evidence you may have i.e. copy of sick note from your GP.

To avoid the stress of making such an application COMPLY WITH THE COURT’S DIRECTIONS and if you can’t apply to the Court PRIOR TO THE EXPIRY OF THE COURT’S ORIGINAL ORDER and seek the consent of your opponent.


by Deborah Aloba

of Affordable Law For You

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

How a Judge sees the Litigant in Person issue

Litigants in Person




If you are not a litigant in person:

Many litigants in person become involved in litigation because they have no alternative and many others become involved in litigation because they think that they have no alternative.

While you are perfectly entitled to be as firm as the circumstances require you should be unfailingly courteous.

Try to find what the real issues are and address them. It is your duty to all litigants in person to do what you can to assist them with the mechanics of the process of litigation such as (to the extent that you are permitted) helping with the orderly compilation of hearing bundles.

Expect to feel that it is frustratingly as if the court is bending over backwards in favour of your opponent.


If you are a litigant in person:

Try to identify the real issues.

Address the issues in ordinary English – there is no such language as “Courtspeak”.

Don’t download statements of case from the internet without understanding what they say and being able to support what is said at a hearing – the judge will be looking at you not the website.

Remember that asserting something is not the same thing as proving it.

Always obey court orders and, if you may be late, immediately apply for an extension of time or an adjournment with your reasons and (where needed) the evidence for doing so.

Take a good note.


Above is an extract from Case Handling - An Illustrated View from the Bench by HH Nicholas Chambers QC published by Wildy, Simmonds & Hill Publishing.

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.


Yesterday, I delivered my keynote speech to law students at Brunel University, prior to running my Advocacy course this term. Here are some of the more salient points, I felt I should share, in terms of presentation, attitude, and delivery.

Adversarial advocacy is a polite contest between two sparring advocates seeking to persuade a Judge to prefer their argument, to that of their opponent.

You win by presenting a perceptively persuasive, and irresistible argument within the rules by not misleading the court, not losing your temper, and keeping a cool head, despite a Judge's questioning, berating, or anything else going on in a court at the time.

Understand and hone your skills of perspicacity: an ability to understand things quickly and make accurate judgments, especially in relation to the attitude and perceptions of the usher, the clerk, your opponent, your client, and the Judge. All of these people are linked. If you are excitable and arrogant outside of the doors of the court, it is gossip for the usher who tells the clerk, who tells the Judge, so be polite and respectful of everyone in the process. There is no need to ever be rude to court staff. Conversely, shmoozing has its place at appropriate times, but being a sycophant only seeks to annoy.

Watch the Judge's pen. Attune the speed of your delivery so that notes can be taken, and good points are not missed. A Judge asleep is a bad thing...A Judge who stops writing is a bad thing. A Judge who looks at the ceiling is not a good thing. A Judge who stares intensely at you is not a good thing.

Get into a rhythm when advocating. Try to deliver your points in threes. Stories naturally have a beginning, a middle, and an end. What is easy on the ear, is an argument that is put simply and unequivocally, and brings with it a sense of logic. Delivery having regard to the tone, and pitch of your voice, with adequate pauses, makes for receptive listening.

Be aware of your poise. Don't be a diva. Be humble, yet firm. Confident, but not arrogant. Be respectful, cool, calm, and collected. No over-dramatics. Don't become too emotional. Don't be intense. Rather, be measured in the presentation of your delivery. No hands in pockets; no fidgeting, no playing with your phones, no twirling of pens. All sound and movement can be seen from a higher vantage point where Judges usually sit, and it detracts from what you seek to say and is an unwanted and unnecessary disruption. The apparent ultimate standing angle in which one is likely to be most persuasive is 84.5 degrees. Good luck with that.


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.


When you think you are right and everyone else is wrong

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.