KA-2024-000232 - [2025] EWHC 1681 (KB)

This ground challenges the second reason the Judge gave for declining to strike out Point 23, namely his view that the Appellant was also to be criticised for taking no steps to chase the Respondent for the annotated document schedule: see [16] of his judgment at [41] above. The Judge was of the view that both parties were at fault for failing to comply with the overriding objective and to assist the court. He maintained this view in his judgment on costs on 8 November 2024 at [7.a]: see [57] above.

The Appellant contends that the Judge was wrong to not give proper effect to the correct interpretation of CPR 1.3 and in doing so, misapplied the principles derived from Barton and Woodward.

In Barton at [22], the Supreme Court held that a party and their legal representative was “under no duty to give [the other party] advice about service of a claim form” not least because to do so might be to deprive the first party of a limitation defence. In Woodward at [42], the Court of Appeal applied this principle to hold that although the parties are required to help the court to further the overriding objective, they are not required to help each other. At [48], the Court held that the duty not to engage in technical game-playing, discussed in Denton v T H White Ltd [2014] EWCA Civ 906 at [41], was directed at inappropriate resistance to applications for relief from sanctions which are bound to succeed. More recently, in Thiscompany Ltd & Ors v Welsh & Ors [2024] EWHC 2159 at [22], HHJ Cadwallader concluded that to require one party to respond to a particular request would be to “re-introduce a duty by the back door”.

Accordingly, this ground raises the interesting issue alighted upon by the Judge of where the lack of a duty to assist an opponent identified in Barton and Woodward begins to conflict with the duty to assist the court. Mr Mason’s position is that, logically, if there is no duty to alert an opponent to the need to serve a claim form, for want of denying a client a limitation defence, there should be no duty to “chase” for a schedule, for want of denying a client the ability to seek a strike out order.

For my part, there is an inherent logic in, and attractiveness to, Mr Mason’s submission. However, the fundamental difficulty with this ground is that the evidence strongly suggests that the Judge was not taken to Barton and Woodward before he made the decision under appeal.

Mr Lyons said in terms that these authorities were not so raised.

Although the transcript of the 6 August 2024 hearing is incomplete, there is nothing on the transcript which is available to suggest reference had been made to these cases. There are various references to which Mr Lyons took me which suggest they were not.

Further, had these issues been raised during the 6 August 2024 hearing, Mr Mason would be unlikely to have felt the need to set the principles out in detail in his skeleton argument on costs for the 8 November 2024 hearing or in his oral submissions at that hearing; and the Judge would not have said “…take me through that? I do not quite understand it” as he did during the hearing: p.73G-75C.

Accordingly, it is more likely than not that the argument based on to Barton and Woodward was only advanced at the costs stage, after the judgment on appeal.

Given this background Mr Lyons relied on Allen v Bloomsbury Publishing Limited [2011] EWCA Civ 943 at [17], where Lloyd LJ questioned the fairness of an appellate court criticising a judge for having “failed to take into account a factor which, if relevant, was known or available to all parties and which no party invited him to consider as part of the process of exercising his discretion”. Observations to similar effect were made by Males LJ (with whom Snowden LJ and Lewison LJ agreed) in Samsung Electronics Co Ltd v LG Display Co Ltd [2022] EWCA Civ 423 at [5]; and both these judgments were cited and applied by the Court of Appeal in Secretary of State for Transport and another v Cuciurean [2022] EWCA Civ 661, [2022] 1 WLR 3847 at [5]-[6].

In my judgment the same principle applies here: it would be wrong to criticise the Judge for failing to take into account a point not raised with him at the relevant time. I therefore dismiss Ground 3.