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Tarn Insurance Services Ltd v Kirby & Ors [2009] EWCA Civ 19 (27 January 2009)


Court Must Consider Whether Unless Order Still Appropriate in all the Circumstances
The Court of Appeal held that, when exercising the power under CPR 3.9 to grant relief from sanctions for failure to comply with an Unless Order, the correct test to be applied was whether the order remained a proper order in the circumstances at the time of the application for relief. The trial judge had misdirected himself in considering whether the Respondent had a reasonable prospect of success; the judge who made the Order must have considered that the claim had reasonable prospects or he would have ordered Summary Judgment rather than an Unless Order. Accordingly, when considering whether to grant relief from sanctions, the judge was required to assume that the possibility that the Order would deprive the Respondent of the opportunity to advance a defence with reasonable prospects of success had already been taken into account.