On appeal from: [2014] EWCA Civ 14

The Supreme Court unanimously dismissed the appeal concerning whether the Court of Appeal erred in holding that late compliance with an “unless order” could not amount to a material change of circumstances so as to justify the variation under the CPR 3.1(7) of an order debarring the appellants’ defence.

In delivering the leading judgment, Lord Neuberger stated that the effect of Henderson J’s “unless” order, coupled with Hildyard J’s finding that the appellants had failed to comply with the disclosure requirements in that order, was that the appellants were debarred from defending the claim unless they were granted relief from sanctions under CPR 3.9. He believed that Hildyard J’s reasoning in refusing relief from sanctions is consistent with authoritative guidance subsequently set out by the Court of Appeal in the cases of Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 and Denton v TH White Ltd [2014] 1 WLR 3926.

In relation to the appellant’s argument that the Court was wrong to hold that they had failed to establish a material change of circumstance, Lord Neuberger stated where a party has had imposed on it a debarring order for failing to comply with an unless order, its subsequent compliance with that unless order cannot without more amount to a material change of circumstances. In refusing relief from sanctions, a court is effectively saying that it was now too late for that party to comply with the “unless” order and obtain relief from sanctions. However, that does not mean that late compliance cannot, in certain circumstances, give rise to a successful second application for relief from sanctions, at least where it occurs in the context of some other relevant change in circumstances. He therefore concluded that, on the facts, there were no grounds which justified the Deputy Judge entertaining the second relief application on the merits.

For judgment, please download: [2015] UKSC 78
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watching the hearing please visit: Supreme Court website