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Accordingly, in the Working Party's view, in cases where no prior interlocutory
application has taken place, self-executing orders should not be made on the summons
for directions but only upon an application complaining of non-compliance. Where
there is a failure to comply with a direction (which the parties have not agreed to
vary), the other party ought to be able to apply for, and the court should normally
make, a self-executing or "unless" order in relation to that direction. Should there be
non-compliance with that order, the burden would shift to the party in default to obtain
relief from the prescribed sanction, failing which, that sanction would automatically
take effect.
Where interlocutory applications are taken out before reaching the summons for
directions stage, for example, applications to challenge jurisdiction or to set aside a
default judgment or for summary judgment or to strike out an action, self-executing
orders may, if appropriate, be made when giving directions consequential on the
disposal of such applications. If, after such disposal, the cause or matter is to proceed
to the questionnaire and summons for directions stage, any self-executing orders made
earlier would be taken into account when completing the questionnaire and when
giving the further directions required on the summons for directions (which further
directions would not carry automatic sanctions for the reasons mentioned above).
As indicated in the Interim Report, the sanction prescribed in a self-executing order
should be proportionate to the non-compliance in question. Where the non-
compliance is such as to make a fair trial impossible, the claim or defence may be
struck out. However, that should be a last resort. As Lord Woolf MR pointed out in
Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926, other sanctions often enable a case to
be dealt with justly without the draconian step of striking the case out.
Notes
Pursuant to rules along the lines of CPR 3.1(3)(b) and CPR 3.8.
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