Although this was not a casualty claim, the court was required to address the three stage test under Denton v TH White Ltd [2014] EWCA Civ 906, in respect of relief from sanctions.

The claim related to a dispute as to who possessed the beneficial ownership of a property. The property was registered in the name of the claimant, his mother and the first defendant. The claimant’s case was that he was the sole beneficial owner but this was disputed by his mother, his brother and his wife.

The claimant was involved in an accident when he was on his way to a court hearing. As a result, he was unable to attend the hearing and an order was made that unless he provided specific disclosure by March 2017 that his claim would be struck out. The court order also provided that unless the claimant filed and served his witness statement by a certain date, he would not be permitted to rely on that witness evidence at trial.

At a later hearing the judge complained that the claimant's bundle of documents had inappropriately contained information on settlement offers between the parties, and that his witness statement was full of comment and was unsigned without a statement of truth. The second defendant also complained that the claimant had only served the disclosure documents on the first defendant when they should have served these documents on all three defendants.

The judge struck out the whole claim on the basis that the claimant had not complied with the court order in respect of providing disclosure to all defendants and had failed to serve witness statements. It was specifically held that the failure to serve witness statements was a second breach of the order, which meant that the claimant could not rely on that evidence at trial so it was impossible for his claim to succeed.


The claimant appealed the decision arguing that the judge had treated the claimant’s breaches of the Unless Order as meaning that the claim must be automatically struck out.

The court noted that the claimant was a litigant in person and the judge had made the Unless Order when the claimant had not been present. As a result, the judge did not have the opportunity to explain to the claimant the significance of the Unless Order and that non-compliance would likely result in the claim being struck out.

It was held that the judge had not considered whether it was appropriate to grant relief from sanctions and did not attempt to apply the three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906 and did not consider whether striking out the claim was an appropriate response to the claimant’s failings.

The court concluded that the judge had wrongly treated non-compliance with the Unless Order as meaning that the claim should be automatically struck out.

The three-stage test in Denton in respect of relief from sanctions was applied and the court held that the breaches had not been serious or significant and that it was doubtful whether the claimant’s failure to send a copy of the bundle to each of the defendants was a breach of the judge's Unless Order.

Also, the court noted that the Unless Order did not make clear that the claimant was required to serve individual copies of the bundles so if there was a breach then this was a technical one given that the defendants were closely related and lived near to each other. Also, the court concluded that there was no evidence that the second and third defendants had not been aware of the bundle contents or that it had caused prejudice.

Further, it was held that despite the fact that the witness statement had not been signed the content of the statement had been provided in time and the defect with the statement could be easily remedied. Again, it was noted that no prejudice was caused to the defendants as a result of the statement not having been signed.

The court took into account that the claimant was a litigant in person and would not have appreciated the difference between without prejudice material and other material as this had not been explained to him.

As a result, it was held that the judge had acted disproportionately in striking out the claim. It was seem that the breaches could be easily remedied and that it would be unfair to the claimant if his case was struck out.

What this means for you

This case shows that the courts will, in some circumstances, show more leniency to litigants in person, where there are technical breaches or breaches that do not prejudice or affect the progress of the claim.

It should be noted that the claimant was not present when the judge made the Unless Order, which was a factor that was taken into account on appeal, because it was seen that the claimant had not appreciated the consequences of non-compliance with the order. As a litigant in person, the claimant was seen to not have understood the difference between without prejudice material and other material, and the technicality of being required to serve disclosure documents on all three defendants. In this case, it was accepted that the claimant had only served one bundle of disclosure documents because he believed that the defendants would share it and all have access to it.

This case may have been decided differently had the claimant been present when the judge made the Unless Order, because it could have been argued that the order was explained to him and that he had accepted the consequences that would result from non-compliance. However, in this case a large degree of leniency was given to the claimant because they were a litigant in person who arguably had not understood the importance of strict compliance with the Unless Order, had not been present when it had been made. Also it had largely been a technical breach and any defects could be remedied without prejudicing the defendants’ position.