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7-07-2014

In three cases from Bristol, Cardiff and Manchester District Registries, handed down on Friday 4th July (Independence Day...) grouped together to deal with the problems and uncertainties surrounding relief from sanction, Dyson MR brought some welcome common sense in granting the three appeals; although the decisions still leave some room for tactical hostility and wasted costs. He sat with Vos LJ and Jackson LJ himself.

Dyson said that the guidance in Mitchell has been ‘misunderstood and is being misapplied by some courts’, although saying it had been ‘substantially sound’.

He said that that it is necessary in every case to consider all the circumstances of the case, recognising that some judges have reacted rigidly to timetabling breaches, whilst other judges have adopted an approach of giving pre-eminence to the need to decide the claim on the merits.

Of course, although one might think that considering a claim on the merits is generally what justice demands and clients expect, it is not what the post-Jackson era allows. That individual justice has to be balanced in broader terms of justice with the efficiency and cost-effectiveness of the system, the altar of which individual litigants may find themselves sacrificed upon.

Dyson MR said ‘That approach should have disappeared following the Woolf reforms. There is certainly no room for it in the post-Jackson era. It seems, however, that this approach must have been applied in Denton.’

Dyson insisted that the guidance in Mitchell, where the claimant’s non-compliance caused ‘substantial extra work and extra costs to be incurred by the defendant’ could not necessarily be applied in all relief from sanction decisions.

The Master of the Rolls said that there were three stages to a decision on relief from sanction:

Stage 1: the court should concentrate on an assessment of the ‘seriousness and significance’ of the breach in respect of which relief from sanctions is sought.

Stage 2: the court should consider why the failure occurred.

Stage 3: the circumstances of the case itself.

Dyson MR added: ‘The important misunderstanding that has occurred is that, if (i) there is a non-trivial (now serious or significant) breach and (ii) there is no good reason for the breach, the application for relief from sanctions will automatically fail. That is not so and is not what the court said in Mitchell.

He added that today’s judgments should help reduce the need for satellite litigation and will be conducive to a ‘reasonably consistent judicial approach’ to the application of CPR 3.9. That remains to be seen.

All three appeals were allowed:-

Denton & Ors v TH White; an appeal against relief from sanctions being granted for a party that served six witness statements late, was allowed. The two other cases had seen arguments for a more lenient approach; and

Decadent Vapours Ltd v Bevan & Ors, where a case had been struck out for late payment of fees; and

Utilise TDS Ltd v Davies [2014] 3 Costs LO 417 where the court had to decide whether two trivial breaches aggregate so as to become one significant breach (Form H had been 41 minutes late & when another breach of the same order taken into account: relief refused and 1st appeal refused-appeal granted here).

The guidance is welcome. Those engaged in litigation have had difficulties with the inconsistent line of cases on dealing with breaches of the technical court rules. It appeared to be a lottery as to whether the application for relief from sanction would come before a judge who favoured a harsh approach to breaches or one who adopted a more liberal approach in the interests of justice.

The Court of Appeal have provided great assistance here but it remains the case that it should always be the wisest approach to comply with directions when you can, if you are not able to, make an application for an extension promptly but take all steps to ensure that you do not impact adversely upon court time with wasted hearings that need to be vacated for non-compliance with directions.

That is likely to be the main reason why applications for relief may fail. At least the word “may” is in that sentence following the Court of Appeal guidance whereas previously, it would have been a near certainty that relief would be refused in those circumstances.

Frances Coulson (fcoulson@moonbeever.com)

(Link to judgement.)

If you wish to discuss this issue, please contact Frances Coulson (fcoulson@moonbeever.com); or Graham McPhie (gmcphie@moonbeever.com).

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 here.

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