KA-2024-000202 - [2025] EWHC 1646 (KB)

Although the application to set aside the Notice of Discontinuance under CPR rule 3.10 post-dated the Recorder’s decision, it would render the appeal against the Recorder’s decision academic if it succeeded. At the beginning of the hearing I heard argument on whether I should hear that application at all, and if so, when. For reasons given in a separate ex tempore judgment on 17 June 2025, I ruled that I would not hear the application, essentially because (1) I doubt that it is an application “in relation to an appeal” which I have the power to decide under CPR 52.20 and (2) in any event Lizst Price were not before the Court but would be a necessary party to that application. Instead, I proceeded to hear the appeal and to decide whether the Recorder’s decision was right or wrong, a question which itself is unaffected by the application to set aside.

I have therefore not resolved any of the issues raised in relation to the rule 3.10 application, of whether such an application can be entertained at all and, if it can, of whether it is properly to be treated as an application for relief from sanction engaging the Denton criteria and, more generally, how it should be decided in the circumstances of the case including the time taken to make the application.