We previously alerted you on the first instance decision of Theverajah v Riordan and others. In early October 2013, the court had held in favour of the defendants on the basis that the particular facts of the case were sufficient to justify the grant of relief from sanction under CPR 3.9.
Moon Beever had been retained by the defendants at a very late stage in the proceedings and instructed Simon Davenport QC leading Daniel Lewis of 3 Hare Court to make the successful application for relief.
In due course, the claimant, Mr Thevarajah, appealed to the Court of Appeal. Permission to appeal (which was immediately granted) and the substantive appeal itself were heard on 11 December 2013. The Rt. Hon. Lord Justices Richards, Davis and Aikens concluded that relief from sanction should not have been granted under CPR 3.9.
Whilst the full reasoning behind the decision of the Court of Appeal is not yet known (judgment is to be handed down shortly) the decision indicates that the courts continue to take a hard-line approach to case management in the post-Jackson era. The exercise of judicial discretion in the event of a failure to comply with a court order, direction etc, will clearly not be permitted in all but the most exceptional of cases.
This is a significant addition to the line of authority on CPR 3.9 and emphasises that litigants cannot expect the court’s indulgence to procedural failings (regardless of blame or resultant injustice).
This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained in this post. Should you wish to instruct us on any detailed matter, please contact Christopher Burt, Frances Coulson or Graham McPhie