Civil procedure – Unless order – Possession – Court making order for disclosure of conveyancing file relating to property transaction within 28 days – Appellant failing to comply – Respondents obtaining unless order – Court refusing to set aside unless order – Appellant appealing – Whether unless order ambiguous – Whether appellant in breach of unless order – Appeal dismissed
A property in Christchurch, Dorset, was occupied by the first and second respondents. A dispute arose concerning the terms on which the property was bought and held. In proceedings in the county court, the appellant claimed possession of the property.
The respondents contended that the purchase took place pursuant to a joint enterprise between the first respondent and the sole shareholder and director of the appellant, the terms of which entitled the respondents to remain in the property. Their counterclaim included allegations of proprietary estoppel, breach of contract and constructive trust.
On 27 September 2018, the respondents obtained an order for disclosure of the conveyancing file relating to the property which was held by the conveyancing solicitors. Paragraph 6 of an order required the appellant, within 28 days of the date of the order, either to disclose the file or, in the event the solicitors refused to provide a copy, file and serve a copy of their letter requesting disclosure and a copy of the solicitors’ response.
When neither alternative was carried out, the respondents obtained an unless order which provided that, unless by seven days of the unless order the appellant complied with para 6 of the order of 27 September 2018, the claim and defence to counterclaim should be struck out automatically. The order was made on 28 November 2018 and sealed on 29 November 2018. It was common ground that the deemed date of service of the order on the appellant was 3 December 2018.
The appellant’s application to set aside the order was made on 10 December 2018, by which date the appellant had neither complied with the unless order or sought an extension; nor had it applied for relief from sanction. The appellant confirmed that it had by then received the conveyancing file and was in breach of the unless order. The application was refused and a first appeal dismissed by a circuit judge. The appellant further appealed to the Court of Appeal.
Held: The appeal was dismissed.
(1) Taking the order at face value, the words “by 7 days of this order” meant that the seven-day period ran from the date of the order, in other words the date the order was made. That date appeared on the document itself. There was a possible ambiguity between 28 November (date of making) and 29 November (date of sealing) but in this case that made no difference.
Nevertheless, all documents had to be read in context and in this case the relevant context was the Civil Procedure Rules (CPR). There were two important provisions about orders which specified a time by which something had to be done. CPR 2.9(1)(b) required an order imposing a time limit to be expressed as a calendar date including a time for compliance unless that was not practicable. Practice direction PD 40B gave two examples of wording for an order requiring an act to be done: specifying a date and time by which or a period of time within which an act had to be done.
(2) Given that the consequence of failure to comply with an unless order could be the failure of the underlying claim (or defence), the alternatives in PD 40B made obvious sense since the options ought to be either to specify a period for compliance which ran after the date the order had been served or else to express the required date unambiguously as a calendar date, and it also made obvious sense that a calendar date (and time) was to be preferred. Nevertheless, the court would always have the power to make an order which did not fall within either example.
Taking those provisions into account did not lead to a different conclusion as to the meaning of the unless order in the present case. Neither the rule nor the provisions of the practice direction demanded that an order drafted in a manner different from their provisions was to be interpreted in a particular way. As far as PD 40B was concerned, the order made was not in the form of either example. Assuming the judge had taken the view that specifying a calendar date was not practical, to be in accordance with PD 40B, the order ought to have specified at least a date for compliance referable to the date of service. However, the fact the order was outside either example did not justify altering its clear meaning to attempt to bring it within one of them.
(3) The fact that one was left to speculate why the unless order was made in terms which had to be seen as exceptions to the clear provisions of the rule and practice direction taken together would be of potential relevance on an application to vary the order or to seek an extension of time, but that was a different point. There was no reason why the latest date, before which an application to set aside had to be made, necessarily had to be before the date required for compliance with the order. The fact that applications to set aside an order should, if possible, be brought before the date for compliance did not alter the position. Given their potential consequences, the need for clarity in unless orders was plain.
It followed that the appellant was in breach of the unless order on 10 December 2018 and therefore there was nothing wrong with the order made by the judge on that occasion.
(4) A concession made in litigation by a party or on their behalf could not properly be accepted as such unless it was clear, unequivocal and unambiguous. There was nothing unclear, equivocal or ambiguous about the concession being (rightly) made by the appellant that it was, as at 10 December 2018, in breach of the unless order. The appellant was now in a position in which an application for relief from sanction had to be made, because it had failed to comply with the unless order, as well as failing to comply with both the order made on 27 September and the original disclosure order made before that.
Clive Wolman (instructed by Direct Access) appeared for the appellant; Justin Shale (instructed by Direct Access) appeared for the respondents.
Eileen O’Grady, barrister
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