The Court of Appeal’s decision in Diriye v Bojaj [2020] EWCA Civ 1400 is of significance to all civil practitioners, and credit hire practitioners in particular. It considered (i) the proper pleading of allegations of impecuniosity in credit hire cases, (ii) whether the Royal Mail “Signed For 1st Class” service is caught by the deeming provision in CPR 6.26 and (iii) the proper approach to applications for relief from sanctions under CPR 3.9.

To read the judgment, please click here.

Pleading and Proving Impecuniosity

As to this issue, Coulson LJ (with whom Nicola Davies and Rose LJJ agreed) held that:

  1. the Claimant ought to have provided the necessary pleading in respect of impecuniosity at the outset of proceedings, and in the absence of that information an unless order requiring the information by way of Reply was entirely proper (see [7]); and
  2. that Reply needed to set out what the Claimant’s income was, what his expenditure was and how those figures meant that he could not afford to hire a replacement vehicle (see [48]).

Service by “Signed For 1st Class” Post

The question on this issue was whether Royal Mail’s “Signed For 1st Class” service is covered by the description “First class post (or other service which provides for delivery on the next business day” in CPR 6.26, and therefore caught by the deemed service provisions under that rule.

Coulson LJ held that it was: see [34]-[41]. Reasons included that the “Signed For 1st Class” service is simply a version of first-class post that is signed for and it makes no sense to suggest that, by using that service, a solicitor is in a worse position than if they had used the ordinary first-class post.

Relief from Sanctions

Finally, Coulson LJ dealt with a number of points as to applications for relief from sanctions pursuant to CPR 3.9 and Denton v TH White Ltd [2014] 1 WLR 3926. In particular, Coulson LJ:

  1. rejected the suggestion that a breach must adversely affect the court timetable before it can be called serious or significant (see [59]-[61]); and
  2. suggested (obiter) that the court will be slow to find that a respondent to a relief application has been opportunistic. Coulson LJ explained at [69] that the bar set by Lord Dyson MR and Vos LJ in this regard (see Denton at [41]) is a relatively high one and is “emphatically not designed to give carte blanche to a defaulting party to blame the other side for the delays caused by its own breach.”

Further information

For a full analysis of the decision in Diriye, please see my case note.

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