So we have all had our wrists slapped with Denton et al.
Apparently we didn’t understand the Mitchell decision and took tactical advantage of slips by our opponents, which clogged up the courts. It therefore interfered with the County and High Court Judges who were busy playing golf and moaning about the cuts to their pensions.
When I say the courts I of course mean the County Court in [location]. This rebranding being needed so that people will not realise their local court has closed during the next year or two as it will no longer be “[location] County Court”.
Enough musings, crack on with Unless Orders
Enough has been written about the Denton appeal. What needs to be established is how we are going to find the new way to gain an advantage over defaulting opponents.
Sadly, the new way means going back to the old way.
Unless Orders never really went away – they just went out of fashion with litigators.
Why should we go back to the old way?
Quite simply, to lay a trap.
A single breach of directions is unlikely to attract a strong penalty such as strike out.
LJ Jackson made clear in his Fred Perry judgment that it would take a number of defaults before sanctions kick in. Think of it like a 3-strikes-and-you’re-out approach. It is unlikely you will get a yellow and red card system (no more sport references please – Ed).
The way forward
(1) As soon as a breach occurs, make an application for an unless order. It is unlikely that you will need to focus too much on giving notice; the Directions Order is clear.
(2) Offer to handle your Unless Order application by consent – always do this! I repeat, ALWAYS do this.
(3) Get the consent order sealed for an Unless Order as quickly as possible. Harass the Court staff and ensure it is sealed immediately to get your 7/14 days clock ticking.
(4) If the opponent is in breach then assert their claim is struck out, as an automatic sanction built into the Order.
(5) If they then apply for relief from sanction, there will have been 2 breaches on their part, and their endorsement of the consent order will go against them. After all, you placed reliance on their consent and they should not have agreed to something they could not comply with.
(6) Should your opponent comply then at least you will have got some costs and set down a trap for future defaults. It is a points scoring opportunity after all.
(7) All of the above is in your client’s best interests. Should you win, then you maximise their costs recovery; and in the event you lose there is a strong chance of minimising their exposure to costs based on non-compliance arguments.
Over and out.