Marcan Shipping (London) Ltd v Candida Corporation [2007] EWCA Civ 463, [2007] All ER (D) 277 (May)
The sanction embodied in an “unless” order takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect. It is therefore unnecessary, and inappropriate, for a party who seeks to rely on such non-compliance to make an application to the court for the sanction to be imposed, since that sanction takes effect automatically as a result of the failure to comply with the order.
If an application to enter judgment is made under CPR 3.5(5), the court’s function is limited to deciding what order should properly be made to reflect them sanction which has already taken effect. Unless the party in default has applied for relief, or the court itself decides for some exceptional reason that it should act of its own initiative, the question of whether the sanction ought to apply does not arise. It must be assumed that, at the time of making the order, the court considered all the relevant factors and reached
