Kruger Tissue (Manufacturing) Ltd v QPS Consultants Ltd, Court of Appeal - Civil Division, July 01, 1999, (1998) 57 Con LR 1,[1999] EWCA Civ 3016

Issuing Organization:Civil Division
Actores:Kruger Tissue (Manufacturing) Ltd v QPS Consultants Ltd
Resolution Date:July 01, 1999
FREE EXCERPT

SLJ 1999/6304/1, SLJ 1999/5799/1

Neutral Citation Number: [1999] EWCA Civ 3016

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

SALFORD DISTRICT REGISTRY

TECHNOLOGY AND CONSTRUCTION COURT

(HIS HONOUR JUDGE GILLILAND QC)

Royal Courts of Justice

The Strand

London

Date: Thursday 1 July 1999

B e f o r e:

LORD JUSTICE OTTON

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B E T W E E N:

KRUGER TISSUE (MANUFACTURING) LTD Applicant/Defendant

and

QPS CONSULTANTS LIMITED Respondent/Claimant

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(Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A 2HD

Telephone 0171 421 4040

Official Shorthand Writers to the Court)

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MR COLIN REESE QC and MISS C A DOERRIES (instructed by Messrs Dipp

Lupton Alsop, Manchester M2 3DL) appeared on behalf of THE APPLICANT

MR CHARLES MANZONI (instructed by Messrs Fishburn Boxer, London EC3A

8AA) appeared on behalf of THE RESPONDENT

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J U D G M E N T

LORD JUSTICE OTTON: This is a renewed application on notice for leave to appeal against the order of His Honour Judge Gilliland given in the Technology and Construction Court. The matter arises by virtue of a summons dated 6 November 1998 whereby QPS Consultants (the plaintiff and respondent to this application) sought an order debarring Kruger Tissue (the defendant and applicant) from further defending the claim and from pursuing its counterclaim on the ground that it had failed to comply with an unless order of His Honour Judge Howarth made on 21 September when he ordered that it serve by 9 October further and better particulars of its defence and counterclaim and further and better particulars of Schedule 2, failing which it would be debarred from defending the claim and bringing its counterclaim. Suffice it to say that a response was made to that unless order. However, the response was considered by the judge to be so inadequate as to justify activating the penal sanction in the unless order. As a result, and having heard argument, he struck out fundamental parts of the defence and counterclaim, cutting (as Mr Reese QC put it) a swathe through, in particular, the counterclaim.

The primary question which arises is whether the judge was entitled to do so. When the matter came before me by way of the usual paper application, I considered that it was arguable that: (1) the judge erred in requiring more particulars...

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