Marcan Shipping (London) Ltd v Kefalas & Anor [2007] EWCA Civ 463 (17 May 2007)

Marcan Shipping (London) Ltd v Kefalas & Anor [2007] EWCA Civ 463 (17 May 2007)

The sanction in an unless order takes effect automatically upon a material breach without further order. The party in default must apply for relief from sanction under CPR 3.8 and 3.9. In this case, Marcan failed to comply with the unless order and did not seek relief; therefore, the claim stood dismissed and the respondents were entitled to judgment and costs. The judge's order was correct, even if his reasoning did not fully reflect the automatic operation of the sanction under the CPR.

Citation
[2007] EWCA Civ 463
Parties
Claimant/appellant: Marcan Shipping (London) Limited; Defendant/respondent: George Kefalas; Defendant/respondent: Candida Corporation
Jurisdiction
England and Wales
Judgment Date
17 May 2007
Procedural Posture
Civil Appeal / Appeal From High Court (commercial Court) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Unless Orders, Relief From Sanctions, Disclosure Obligations, Striking Out Claims, Case Management, Civil Procedure Rules (cpr)
Civil Procedure Unless Orders Relief From Sanctions Disclosure Obligations Striking Out Claims Case Management Civil Procedure Rules (cpr)

Case Brief

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Parties

Marcan Shipping (London) Limited

Claimant/appellant

George Kefalas

Defendant/respondent

Candida Corporation

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court (commercial Court) to Court of Appeal

Legal Issues

  1. 1 Whether the court was correct to strike out the claim for failure to comply with an 'unless' order for disclosure and security for costs
  2. 2 Whether the sanction in an 'unless' order takes effect automatically upon breach or requires further judicial discretion
  3. 3 Whether the claimant was entitled to relief from sanction under CPR 3.8 and 3.9

Ratio Decidendi

The sanction in an unless order takes effect automatically upon a material breach without further order. The party in default must apply for relief from sanction under CPR 3.8 and 3.9. In this case, Marcan failed to comply with the unless order and did not seek relief; therefore, the claim stood dismissed and the respondents were entitled to judgment and costs. The judge's order was correct, even if his reasoning did not fully reflect the automatic operation of the sanction under the CPR.

Court Disposition

Appeal dismissed

Orders

  • Claim dismissed for failure to comply with unless order
  • Claimant to pay respondents' costs on the indemnity basis, to be assessed if not agreed