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16 August 2007 / Yvonne Simons , Alan Simons
Issue: 7286 / Categories: Features , Procedure & practice
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High stakes

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Applications for relief are best avoided, argue Yvonne Simons and Alan Simons

The court’s power to include a sanction on default in an order is long established and is preserved as part of the court’s management powers by CPR 3.1(3), which provides that when the court makes an order, it may “specify the consequences of failure to comply with the order or a condition”.
Such an order is known as an “unless order” and most frequently appears as part of an order to enforce disclosure or the provision of particulars; the sanction for non-compliance is almost invariably that a statement of case be struck out or that the claim or counterclaim be dismissed.

CASE MANAGEMENT ARMOUR

It has been recently described as “one of the most powerful weapons in the court’s case management armoury and one that should not be deployed unless its consequences can be justified” by Lord Justice Moore-Bick in Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463, [2007] 3 All ER 365.

The danger presented by such an

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