Serious breach of CPR - strike out possible?

[lisalegal]

hello all,

Defendant, appealing a case won by the Claimant, in County Court case launched appeal and it was refused by a DJ. Took it to next stage and was granted appeal on oral application by a QC (pretty rare I believe).

The Defendant (now the appellant) failed to notify the other side (now the respondent) within 7 days as per CPR 52.4(3) and failed to notify them entirely.

The Respondent has now been served with an Order of the Court to prepare for appeal some 4 months after the original oral hearing.

The Respondent has now been denied their right to cross appeal.

Can the Respondent justifiably apply for Strike Out on the grounds that CPR 52.4(3) has not been followed and now places them at a distinct disadvantage?

I believe it does but this is a new one on me and would welcome any help.

thank you as always, Lisa

[Gorang]

Re: Serious breach of CPR - strike out possible?

The Respondent has now been served with an Order of the Court to prepare for appeal some 4 months after the original oral hearing.

The Respondent has now been denied their right to cross appeal.

The way I see this is (but I could be wrong as this is new to me also)

The claimant won so the defendant appeals
so the claimant now has to defend the losing parties (the defendants) appeal
the claimant is now told to prepare for the appeal (ie defend the appeal)
therefor the claimant (the respondant) is in fact cross appealing (ie defending the appeal)

If that makes sense

[lisalegal]

Re: Serious breach of CPR - strike out possible?

I think it has gone beyond that?

The appeal has already been granted, the hearing that is upcoming is to decide whether or not the original decision of the county court hearing is safe or should be changed.

Once the appeal was filed (4 months ago) the appellant should have complied with the CPR and supplied a copy of the appeal to the respondent whereupon the respondent would have 14 days (I believe) to submit a cross appeal.

This did not happen, as the appellant failed to inform the respondent and has, therefore, denied them the right to cross appeal and the appeal hearing took place with the appellant only.

The first the respondent knew that their original case was being appealed was when they received an order of the court to prepare for a hearing.

Lisa

[Gorang]

Re: Serious breach of CPR - strike out possible?

Sorry but this does not make sense to me
"the hearing that is upcoming is to decide whether or not the original decision of the county court hearing is safe or should be changed."

Can you explain this a bit more


you are saying

"Once the appeal was filed (4 months ago) the appellant should have complied with the CPR " but they didn't, ok got that bit
then

"and the appeal hearing took place with the appellant only." ok so the appeal hearing took place without the claimants (respondants) knowledge which
"denied them the right to cross appeal "ie denied the claimant(respondant) to defend the appeal (is this right?)

What was the outcome of that appeal without the claimants presence? ie was the original judgement overturned and the whole case found in favour of the defendant?

if this is the case then why is there another hearing to decide if the judgement is safe or should be changed, as this just does not make sense, unless this hearing is a costs hearing

[lisalegal]

Re: Serious breach of CPR - strike out possible?

the appeal hearing (a few months ago) was an application to appeal against the original decision of the DJ.

the upcoming hearing is to decide whether or not the original decision of the DJ was correct and the the claimants win should stand OR whether it was incorrect and that original decision be reversed or changed.

The appeal hearing was granted in front of a QC without the respondent being present (they didn't know about the hearing of course). This basically gave permission for the original decision to be appealed and that is what the hearing in a few weeks time is for.

The hearing in a few weeks is not costs, the Directions Order quite clearly state that both parties should prepare for appeal in the following manner:- etc

So, basically, I think permission to appeal the original decision has been granted and the hearing in a few weeks is to decide whether or not the original decision of the DJ is correct or not.

Lisa

[Gorang]

Re: Serious breach of CPR - strike out possible?

Ahhh ok

so what you are saying is that the claimant didn't get informed of any application to the court about an appeal

The application was granted at an application hearing (without the claimant present) so you are saying the claimant (respondant) was denied the right to contest the appeal application

is this right

[lisalegal]

Re: Serious breach of CPR - strike out possible?

Ahhh ok

so what you are saying is that the claimant didn't get informed of any application to the court about an appeal

The application was granted at an application hearing (without the claimant present) so you are saying the claimant (respondant) was denied the right to contest the appeal application

is this right

Yes, that is it spot on. That is why I think a strike out is appropriate as CPR 52.4(3) has not been complied with.

Sorry for the confusion en-route.

Lisa

[Gorang]

Re: Serious breach of CPR - strike out possible?

Ok then in answer to this questions from your 1st post

The Respondent has now been denied their right to cross appeal.Well not really as they can now defend in the appeal hearing so I think this will not hold much water on its own

Can the Respondent justifiably apply for Strike Out on the grounds that CPR 52.4(3) has not been followed and now places them at a distinct disadvantage?No harm in trying, nothing ventured nothing gained

I personally would wait until a few days before the hearing as chances are that the appealant will not hand over a copy of their appeal POC, if this happens then the claimant (repsondant) should enter an embarressed defence to the appeal stating they can't plead either way as the appealant has not provided a copy of their arguments to respondant, thus denying the respondant to defend the appeal

If they do hand it over within the correct timelimit then just defend it

Before the appealant has been granted an appeal, it must be a point of law that they have been granted the appeal on


Can you give us details of the case and explain what the original claim was about and what judgement was made, so we can try to figure out why the appeal has been granted