Denton Test and Defendant Conduct: Foreman v Williams [2017] EWHC 3370 (QB)

In the High Court case of Foreman v Williams [2017] EWHC 3370 (QB), judgment has been handed down on a relief from sanctions application, in which non-compliance with the Civil Procedure Rules was the result of the defendant’s own conduct.

The claimant suffered personal injuries in a microlight accident, on 5 July 2015. The letter of claim was served on the defendant on 26 October 2015 and this was acknowledged by the defendant’s solicitor. Subsequently, the insurers denied coverage of the claim under the defendant’s insurance policy. As a result, the defendant’s solicitor was no longer instructed. Details of this, along with information that the defendant had moved to Spain without leaving a forwarding address, were passed on to the claimant’s solicitor.

The claimant attempted to serve proceedings on the defendant’s address and email, after the defendant’s solicitor ceased to coordinate. In an email from the defendant, he refuted that he had received the proceedings via email and confirmed that the claimant’s solicitor had sent the hardcopy proceedings to the wrong address.

By way of an order, made by Master Davison on 25 November 2016, service by email constituted good service. Thus, the claim form had been served on 20 September 2016.

On 8 February 2017, Master Davison made an order, giving judgment for the claimant, as the defendant had not received an acknowledgement of service or filed his defence. Nonetheless, the defendant claimed that he had attempted to send an acknowledgement of service. Information was also provided, regarding a future case management conference, on 3 April.

The defendant said, however, that he could not take part, as he had lost his mobile phone and his email address had been disabled, despite the fact there was no ‘bounce back’.

At the CMC, trial directions were given by Master Davison, and the subsequent order of 6 April was sent to the Defendant on 13 April. The trial was listed for 13 December and notice stating as such was sent to the defendant on 26 May.

The claimant served its costs budget, list of documents and witness statements on the defendant’s Spanish address, as per the order of 6 April. Nevertheless, the claimant's solicitor received a letter from the defendant, which notified them that he had been evicted and were of no fixed abode. The defendant went on to advise that he would inform the claimant's solicitor when he had a fixed address, but never did so. In any event, the claimant emailed digital copies of the schedule of special damage, the report of the Claimant's orthopaedic expert, the application for relief from sanctions and the skeleton argument, on 11 December.

Pre-trial, the claimant made an application for relief from sanctions, pursuant to CPR 3.9, in respect of service of witness evidence, expert evidence and the schedule of loss, as non-compliance with the directions order was alleged to have been caused by the conduct of the defendant. 

In respect of the Denton 3-limbed test, Peter Marquand, sitting as a Deputy High Court Judge, ruled, at paragraph 14:

The first limb of the test is to assess the seriousness and significance of the breach. In a case where the Defendant had been taking part in the litigation the failure to comply with the directions given for trial would be serious and significant. However, it is clear from the background and evidence that I set out above that the Defendant had been taking steps to avoid having anything to do with the litigation. The Defendant has had notice of the proceedings, he has been provided with a trial date, he has received the draft directions but frustrated attempts to provide him with the documents that he would require if he intended to take part in any trial. It seems to me unlikely, given his pattern of conduct, that he would have taken part in the trial in any case even if the documents had been served on time. I do not think it can be said that these ‘failures’ by the Claimant have imperilled the trial date. What has happened is entirely the responsibility of the Defendant and caused by his own conduct. Therefore, in the specific context of this case, I do not see how the conduct of the Claimant can be considered serious or certainly significant. The second stage is to look at why the default occurred and is quite straightforward because it is entirely the fault of the Defendant. The third stage is looking at all the circumstances of the case to enable me to deal with the application justly. This also leads me to the conclusion that relief from sanction should be granted. If I were to find otherwise the Claimant would not be entitled to proceed with the substance of his claim and the Defendant would have frustrated justice by his conduct and Court time would have been wasted. Accordingly, I granted relief from sanction’.

Full text judgment can be accessed here.