In a recent commercial court case (they tend to deal with high value, complex cases), the court was asked to set aside an earlier order (the same judge who made the earlier order heard the application) against defendants who had failed to abide by court directions. Having heard the application, the judge was prepared to set aside his earlier order but laid down a number of mandatory requirements, including, and this is the important part, that the defendants pay a sum of money into court (£25,000). In essence the judge was unconvinced of the evidence provided for the earlier non-compliance, and made it clear that the overriding objective — the court’s cornerstone when considering all aspects of litigation – gave him the right to order a payment into court. (He also made a number of other directions but these were no more than a reinforcement of what should have happened before.)

Although it was not expressly said, in effect the judge was punishing the defendants (he also made a number of costs orders against them) for not complying with his earlier order. Whilst it’s not that unusual to require a defendant to pay money into court, it’s rare to see it for non-compliance of directions.

The key takeaway: make sure you understand what’s going on, and if you’re asked to do something that you give yourself: (a) plenty of time: (b) lots of diary reminders(!); and (c) if you’re not clear, exactly what you need to do, ask in plenty of time so that you’re not left in the awkward position of thinking you’ve done what is required only to find out that you’ve got it wrong.

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