“Fore-Warn or Forego” – The New Advance-Notice Rule when Relying on Merits in Relief-from-Sanctions Applications
Commentary on Bangs v FM Conway Ltd ([2024] EWCA Civ 1461)

1. Introduction

Bangs v FM Conway Ltd is the latest Court of Appeal pronouncement on the Denton relief-from-sanctions jurisprudence. The appeal arose from a procedural mis-step: the claimant’s solicitors failed to serve Particulars of Claim within the time-limit prescribed for Commercial Court actions, leading to the striking-out of the claim. When first-instance judge Jacobs J reinstated the action, he placed decisive weight on (i) a pre-action admission of liability (later withdrawn) and (ii) the apparent strength of the claimant’s case on liability. FM Conway successfully appealed, contending that the judge should not have examined the merits at all – certainly not without fair warning.

The Court of Appeal (Males LJ giving the leading judgment; Snowden LJ and King LJ concurring) seized the opportunity to give detailed guidance on when, and how, the merits of an underlying claim may be considered on procedural applications. In doing so, the Court crystallised a new “advance-notice requirement”: a party who wishes to deploy the substantive merits (arguing that its case is strong enough for summary judgment) must flag that intention clearly and in good time; otherwise the court must ignore the merits.

2. Summary of the Judgment

• The Court allowed the appeal, restored the strike-out order, and set aside Jacobs J’s extension of time.
• The core error below was reliance on the merits without prior notice, causing procedural unfairness to FM Conway.
• The Court distilled five propositions:
  1. Merits are generally irrelevant on relief-from-sanctions applications.
  2. The sole recognised exception is where a party can show (readily, without major investigation) an entitlement to summary judgment.
  3. If that route is taken, clear advance notice must be given; a reference in a last-minute skeleton is insufficient.
  4. Even then, the responding party need only demonstrate that summary judgment would be inappropriate, not marshal full trial evidence.
  5. Judges must resist invitations to delve into merits where these safeguards have not been met.
• On the facts, no such notice had been given; therefore Jacobs J’s reliance on the withdrawn admission and the “very strong” appearance of the claim was procedurally unjust.

3. Analysis

3.1 Precedents Cited

The Court’s reasoning knitted together a line of authority:

• Denton v T.H. White Ltd [2014] EWCA Civ 906 – three-stage test for relief against sanctions (seriousness, reason, all the circumstances).
• FXF v English Karate Federation Ltd [2023] EWCA Civ 891 – classification of cases (three categories) where relief from sanctions interacts with non-compliance and subsequent court orders.
• Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64 – Lord Neuberger’s principle that merits are irrelevant save where summary judgment is clearly available.
• R (Hysaj) v SSHD [2014] EWCA Civ 1633 – Moore-Bick LJ emphasised the “very strong/very weak” threshold and discouraged mini-trials.

These cases created the doctrinal platform on which Males LJ built the new notice requirement. He harmonised Global Torch and Hysaj, clarified their application post-Denton, and integrated them into the FXF categories framework.

3.2 Legal Reasoning

1. Applicability of CPR 3.9
   Despite CPR 58.5 containing no built-in sanction, the strike-out order made under CPR 3.4 turned the procedural breach into a “sanction”, pulling the case into the relief-from-sanctions regime per category (iii) of FXF. Both parties accepted that Denton applied.
2. Stage 1 & 2 (Serious breach / No good reason)
   Uncontroversial: 81-day delay; no good reason.
3. Stage 3 (All the circumstances)
   Jacobs J weighed factors for and against relief. For Males LJ, the cardinal error was treating the withdrawn admission as equivalent to a demonstrably unanswerable claim, without first ensuring procedural fairness.
4. Merits Threshold Standardised
   Echoing Global Torch, the Court reiterated that only a summary-judgment-level case justifies considering merits. Phrases like “very strong” must be read as shorthand for that stringent test, not as a looser balancing factor.
5. Advance Notice Articulated
   Fairness dictates that a party must state ahead of time that it will rely on summary-judgment-strength merits. The other side can then decide what (limited) evidence to file. Absence of notice bars any merits enquiry.
6. Outcome
   Because no notice had been given, the merits should have played no role in Stage 3. Once stripped of the ‘very strong case’ factor, the balance of Denton factors pointed clearly to refusing relief. Hence the appeal succeeded.

3.3 Impact of the Decision

• Procedural Playbook Revised
  From now on, litigants who wish to invoke the underlying strength of their case at a Denton hearing must:
  • Explicitly plead the intention in correspondence, evidence or pre-hearing directions replies;
  • Do so early enough for the opponent to respond meaningfully;
  • Frame the argument in summary-judgment terms, supplying brief but cogent material to show the claim/defence is unanswerable.
• Caution for Withdrawing Admissions
  Although not determinative, the Court noted CPR 14.1’s 2023 amendment requiring court permission to withdraw pre-action admissions. Parties should factor in the higher threshold before reversing admissions, lest they feed any “very strong case” narrative.
• Strategic Consequences
  Defence teams must monitor opponents’ procedural defaults. But if they plan to argue that relief should be refused because the claim is weak, they too must respect the advance-notice principle. Piggy-backing on surprise merits arguments is no longer tolerated.
• Court Efficiency
  By policing when merits can be ventilated, the judgment furthers the Jackson reforms’ twin aims: proportionality and discipline in interlocutory litigation.
• Academic Significance
  The decision plugs a gap left by Global Torch/ Hysaj: they stated that the merits may matter; Bangs v Conway prescribes how and when they may be advanced.

4. Complex Concepts Simplified

• Relief from Sanctions (CPR 3.9) – A request to be excused from the consequences (e.g., strike-out) of breaching a court rule or order.
• Denton Three-Stage Test
  1) Was the breach serious or significant? 2) Was there a good reason? 3) Considering all the circumstances (including efficient conduct of litigation and compliance with rules), should relief be granted?
• Summary Judgment – A procedure (CPR 24) allowing judgment without trial where the court decides a claim or defence has “no real prospect of success” and there is no compelling reason for trial.
• Pre-action Admission – A statement of liability made before proceedings start. Since Oct 2023, CPR 14.1 generally bars unilateral withdrawal without consent or the court’s permission.
• FXF Category (iii) – Situations where a separate court order (e.g., default judgment, strike-out) is made because of the earlier breach; obtaining relief means setting aside that order.

5. Conclusion

Bangs v FM Conway Ltd refines the procedural landscape post-Denton. The Court of Appeal confirmed that merits are almost always off-limits in relief-from-sanctions disputes – save where a party can demonstrate, summarily and with proper notice, that its case is unanswerable. The judgment helps courts avoid mini-trials, protects parties from ambush, and provides a clear “fore-warn or forego” rule for litigators. Looking forward, practitioners must integrate this guidance into their strategic toolbox whenever deadlines slip and sanctions loom.