Travel and Holidays v Hajj Charter

Factual and Procedural Background

This opinion concerns an application by the Plaintiff for relief against the sanction of having the claim struck out due to failure to comply with a court order. The background begins with an order dated 14 January 2013, where the Plaintiff unsuccessfully opposed an application to vary a freezing order obtained against the Defendants. As a result, the Plaintiff was ordered to pay costs of £48,000 by 28 January 2013, which were not paid by that deadline.

Following non-payment, on 7 February 2013, the Defendants applied for security for costs and to strike out the claim. The application for security was refused as being too late, but the court ordered the Plaintiff to pay a balance of £21,000 by 22 February 2013, failing which the claim would be struck out.

On 14 February 2013, the Defendants made a further unsuccessful application to vacate the trial date, resulting in a costs order of £6,000 against them, which was set off against the Plaintiff’s debt, reducing the balance due to £15,000 payable by 22 February 2013, with failure to pay resulting in automatic striking out of the claim.

The Plaintiff attempted to comply on 21 February 2013 by instructing a bank in Azerbaijan to transfer £15,000 to the Defendants’ solicitors’ account. However, the instruction lacked the IBAN number, which was only provided on the morning of 22 February, causing a delay in the money being received until 25 February 2013, after the deadline had passed.

Documents produced showed inconsistencies regarding the payment instructions and the entities involved, but no explanation was given. The court concluded that the delay was due to the Plaintiff’s fault, though not intentional.

The Defendants’ solicitors, uncertain whether payment was received before the deadline, decided not to deliver counsel’s briefs, fearing personal liability if the claim was struck out and not reinstated. The payment was confirmed as received on 25 February 2013, one working day late.

Legal Issues Presented

The opinion addresses a procedural matter and does not frame distinct legal issues.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court reasoned that the Plaintiff failed to comply with the order requiring payment by 22 February 2013, resulting in automatic striking out of the claim at that time. The Plaintiff argued that giving an irrevocable instruction to the bank on the deadline day constituted compliance. The court rejected this, holding that payment must be actually received by the deadline, not merely instructed.

The court applied the factors under CPR Rule 3.9 to assess whether relief from sanction should be granted. It found that:

• The interests of justice strongly favored deciding the case on its merits rather than enforcing the sanction.
• The application for relief was made promptly.
• The failure was not intentional but due to inadequate efforts to comply.
• There was no good explanation for leaving payment to the last minute, but this fault was outweighed by other factors.
• The Plaintiff’s solicitors were not responsible for the failure to comply.
• The trial date could still be met with some adjustment.

The court acknowledged some delays in disclosure and trial bundle preparation by the Plaintiff but did not consider these material to the relief decision. It also considered the impact of the failure on both parties, concluding that the Defendant’s preparation was delayed but not to an extent justifying refusal of relief. Granting relief would allow the case to be decided on its merits, while refusal would be disproportionate given the minor delay.

Regarding trial scheduling, the court found a two-day delay attributable to the Plaintiff’s default and preparation delays. Counsel’s availability and financial constraints due to a freezing order complicated rescheduling. Balancing these factors, the court decided to adjourn the trial start date by two days to 6 March 2013, rather than a longer delay until May, which would unfairly prejudice the Plaintiff.

On costs, the court recognized that the Plaintiff’s failure caused additional costs but also noted the Defendant’s position was not entirely justified in seeking refusal of relief. The court ordered the Plaintiff to pay an additional £15,000 in costs, a reduced amount from that claimed.

Holding and Implications

The court’s final decision is to grant relief from the sanction of striking out and to reinstate the claim.

The trial start date was adjourned by two days to 6 March 2013 to accommodate preparation and counsel availability. The Plaintiff was ordered to pay an additional £15,000 in costs related to the failure to comply with the court order. No new precedent was established; the decision was based on the application of established procedural rules and the interests of justice in balancing sanction and merit determination.