Marcan Shipping (London) Ltd v Kefalas – no further order required after breach [2007] EWCA Civ 463

The sanction embodied in an 'unless' order takes effect without the need for a further order once the party to whom it is addressed fails to comply with it in any material respect. This means that it is unnecessary and inappropriate for the party who seeks to rely on the effect of the unless order to make a separate application to "activate" the sanction. If an application for judgment needs to be made under CPR 3.5(5), the court's function is limited to deciding what order should be made to reflect the sanction which is already effective. Unless the party has applied for relief under CPR 3.8, or the court decides that it should act of its own initiative under CPR 3.3, the question of whether the sanction ought to apply does not arise.

Comment: in the opinion of the Court of Appeal, "a conditional order striking out a statement of case or dismissing a one of the most powerful weapons in the court's case management armoury and should not be deployed unless its consequences can be justified." It could not imagine circumstances in which such an order could properly be made for “good housekeeping purposes”. This decision has two main effects. The first is that unless orders should be made with less readiness in future – if they are made for “good housekeeping purposes” or all the relevant factors under CPR 3.9 have not been taken into account, an appeal is likely to succeed. The second is that once a party has failed to comply with an unless order, that is the end of the matter. The condition, usually the striking out of the claim or defence, will take effect automatically. Any application for relief from sanctions must be made before the order takes effect. Once the date has passed, it is too late.