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Some sanctions will naturally suggest themselves. Thus, failure to serve ordered
particulars of a pleaded paragraph may carry the natural consequence of that
paragraph being struck out. Failure to serve a witness statement or expert report in
time might naturally lead to the exclusion of the evidence of that witness or that expert
at the trial. Other less obvious sanctions might include orders for costs to be paid
forthwith; for costs to be paid on a special basis; for subsequently depriving a
successful plaintiff of interest or part of the interest otherwise payable; for awarding
interest at a higher rate against a defendant subsequently found liable; and for money
to be paid into court. The need to tailor the sanction to fit the relevant default is
another argument against making "standard" self-executing orders at the summons for
directions stage.
Relief should not automatically be granted upon a defaulting party's application. A
reasonable explanation for non-compliance should be required and consideration given
to the extent of prejudice to the innocent party if relief is granted. Any relief should
generally be ordered on suitable terms as to costs, putting up security, and so forth,
with a view to deterring non-compliance.
Recommendation 83: When disposing of interlocutory applications after the
summons for directions, the court should normally make orders which specify
the automatic consequences of non-compliance appropriate and proportionate to
the non-compliance in question. Orders specifying such consequences may, if
appropriate, also be made where the interlocutory application is heard before the
summons for directions. However, the directions given on the summons for
directions itself should generally not specify any such consequences.
Recommendation 84: While it would be open to a party who has failed to
comply with a self-executing order to seek relief from the prescribed
consequences of his non-compliance, such relief should not be automatic and, if
granted, should generally be granted on suitable terms as to costs and otherwise.
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