24 Jan 2022
The July order was not an 'unless order' and therefore O.2 r.4 did not apply; the Master properly exercised his discretion under O.3 r.5 to grant a retrospective extension of time to the defendant and the plaintiff's challenge failed, so the appeal is dismissed with costs.
6 Jan 2012
Relief from the sanction of the unless order was granted because the court was not satisfied there had been deliberate flouting, the trial dates and length would not be affected, and justice required allowing the defendant to rely on her witness statements; relief was conditional on timely service, costs to the defendant for late service and costs of any supplemental discovery or reply, and subject to summary assessment of costs.
24 Feb 2005
The Court of Appeal held that the master erred in entering judgment in default and in executing an unless order by entering judgment given the subsequent order for further discovery, procedural irregularities (wrong return date, absence of solicitors) and the need to investigate privilege/malice; the allocatur was properly subject to review and was set aside; consequently the judge below was correct to set aside the masters' orders and to order repayment of sums and costs as set out.
23 Dec 2002
The judgment entered ex parte was irregular and should be set aside because the plaintiffs sought a fixed sum for what was fundamentally an unliquidated claim requiring accounts and further discovery; moreover the 1st defendant's affirmation filed within the stipulated time amounted to at least substantial compliance with the unless order so an inter partes application should have been pursued rather than ex parte judgment. Although the 2nd defendant failed to file her own affidavit personally, the court exercised discretion because her solicitors' mistake was not contumelious and extended ti…
23 Dec 2002
The court held the entry of judgment was irregular and must be set aside because (1) the claimed sum was not a liquidated demand but required accounting and inquiry, so judgment for a specific figure was improper; and (2) the unless order was a time order and the affirmation filed on 20 November 2001 constituted at least substantial compliance such that the plaintiffs should have sought relief inter partes rather than entering ex parte judgment. The 2nd defendant nonetheless had failed personally to file an affidavit but her failure was not contumelious and time was extended for compliance.
19 Mar 1996
Issue estoppel did not bar the respondent's new District Court claim because the earlier strike out produced a default judgment not decided on the merits; although peremptory orders should be complied with and unexplained non‑compliance can justify striking out a subsequent action, the judge properly exercised her discretion in the particular circumstances (an explanation was offered, an appeal had been pursued and discretion to strike out must be sparingly used); accordingly the appellate court must not interfere and the appeal is dismissed.