Pannone LLP v Aardvark Digital Ltd [2011] EWHC Civ 803

The parties had reached an agreement that the Respondent’s reply and defence to counterclaim submissions would be served by a particular time and date. A consent order had been signed to this effect, stating that if the submissions were not served by that time and date, then the claim would be struck out. The Respondent’s solicitor signed the consent order, but commented that its terms were “draconian and way more than the court would have ordered”. In the event, the Respondent’s solicitor was a few minutes late in filing and serving the submissions, although the process of filing by fax and serving by email was commenced before the deadline.  

The district judge extended the time for filing and service of the Respondent’s submissions, and gave the Respondent relief from the specified sanctions in respect of its failure to file and serve in time. This decision was upheld in the High Court, and came before the Court of Appeal.  

The appeal was dismissed. Under the CPR the court has the power to extend the time for compliance with a court order (CPR 3.1(2)(a)) and to grant relief from sanctions (CPR 3.8). This is the case even where the order in question is expressed to have been made by consent.  

While the fact that an order is made by consent is one of the factors to be taken in to account by the court when considering whether to exercise these powers, the weight to be given to that consideration will vary according to the nature of the order and the agreement between the parties. Where, as in this case, the agreement related to a procedural case management matter, the weight accorded to the fact of the parties’ agreement as to the consequences of non-compliance would be less, and rarely decisive. By contrast, where a consent order compromises a substantial dispute, its existence is likely to have significant weight and may well persuade the court not to exercise its discretion.  

The Court noted that it is not necessary to impose any further gloss on the CPR in relation to the factors that the Court must consider, as the Rules are already adequately drafted so as to ensure that all proper considerations are taken in to account.