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Unless Orders and Relief from Sanctions under Order 31A

In a Ruling from the Court of Appeal delivered on 17 October 2022 the Court found that a Supreme Judge has no inherent jurisdiction to vary the time period for the compliance of a direction in an Unless Order. The Court was of the view that an application was required under RSC Order 31A for relief from sanctions.  

In a hotly contested appeal,  Raynard Rigby KC,on behalf of the Respondents, sought to argue that a Judge could vary the time and/or extend time for compliance as the Supreme Court has an inherent jurisdiction to control its process. The Court of Appeal disagreed with this argument. The Court held (in part):

47. At paragraph 25 of the judgment, the judge acknowledges that O.31A, r.20 (1) is a part of the legislative framework for striking out a pleading. The court made the Order and there is no dispute by any of the parties that Sigma and Forbes did not comply with that Order. Accordingly, when it made the Unless Order, pursuant to O.31A, r.20 (1), the court exercised its power to strike out the pleading on the basis that there was failure to comply with the Order. When making the Unless Order, the court specified the consequences of failure to comply, i.e. that Sigma’s Pleadings shall stand dismissed with costs to Belgravia.

48. As previously stated, even the judge found as a fact that there had been non-compliance when she stated that she had the “firm view” that Sigma and Forbes had more Bankers Boxes than they had delivered to Belgravia by the deadline of the Unless Order. In my 23 judgment, once the judge made that finding, the non-compliance with the Unless Order was established. 49. In my judgment, and in accordance with O.31A, r. 24(2)(b), when Sigma and Forbes failed to comply with the Unless Order, Sigma’s Pleadings stood dismissed with costs to Belgravia. The authorities cited above show that the sanction took effect immediately on 26 July, 2019, without the requirement for any further order.

50. Pursuant to O.31A, r.24(2)(b), and consistent with the aforementioned decisions, it is clear that in order for the sanctions to not take effect, Sigma ought to have applied for and obtained relief from the sanction.

51. It is noteworthy that the judge cited the correct principle of law in paragraph 28 of her judgment, viz, that where there is a failure to comply with an unless order, the sanction specified in that order will take effect automatically. Thus, in my judgment it is unfortunate that the judge nonetheless considered that she had jurisdiction to vary the unless order, when a. the sanction had already taken effect and b. no application for relief from sanctions had ever been made.

52. Had the judge or Sigma considered that the Unless Order was not sufficiently clear, this ought to have been addressed upon Sigma making an application for relief under O.31A, r.25. Notably, O.31A, r.25(1) requires the Court to be satisfied that, inter alia, the failure to comply was not intentional and there is a good explanation for the failure. It was while making this application that Sigma could have made submissions, supported with an affidavit, to the court that they did not comply with the Unless Order because it was not sufficiently “precise and specific”. In the absence of an application pursuant to O.31A, r.25, the judge had no jurisdiction to address the question of whether Sigma and Forbes had good reason for failing to comply with the Unless Order.

The likely implication of the Ruling is that once a Judge of the Supreme Court grants an Unless Order any non compliance can only be cured with an application for relief from sanctions. There may be no residual jurisdiction in the Judge to extend the time for compliance whether by application or of its own motion. 

A read of the Court’s decision is a must for litigants. 





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