Where a party fails to comply with any rule, practice direction or court order (e.g. failing to provide a witness statement by the court ordered deadline), an application for relief from sanctions may be required.
Relief from sanctions can include (but not limited to):
- Reinstating a claim that has been struck out.
- Permission to rely on a document filed out of time.
- An extension of time.
When considering an application for relief from sanctions, the court will have regard to CPR 3.9 and the three stage test set out in Denton v TH White Ltd [2014] EWCA Civ 906.
CPR 3.9
CPR 3.9 provides that:
- On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
- for litigation to be conducted efficiently and at proportionate cost; and
- to enforce compliance with rules, practice directions and orders.
- An application for relief must be supported by evidence.
The test
The principles when considering an application for relief from sanctions was set out by the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795, and thereafter improved in Denton. The test was clarified as follows:
The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages.
The second stage is to consider why the default occurred.
The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.
The full judgment can be found at https://www.judiciary.uk/wp-content/uploads/2014/07/denton-decadent-utilise.pdf
Taking each stage in turn:
The First Stage –
Where a breach is not likely to impact the efficient progression of the litigation or trial date, it is unlikely that the court will consider the remaining stages of the test. Conversely, where a breach may lead to the trial date being jeopardised by an adjournment, it is likely that this will be deemed a significant breach, leading to consideration of the further two stages.
The Second Stage –
When a breach is significant, the court will then consider why the default occurred. For example, if a court fee was not paid due to the hearing being moved forwards, without notice to the Claimant, the court may determine that this was not the Claimant’s fault and relief will be granted. Where there is no good reason for the breach, the third stage will be considered.
The Third Stage –
If a breach is significant and there is no good reason for the default, the court will consider all the circumstances of the case. The circumstances will differ between cases. The court confirmed in Denton that “As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances. Likewise, other past or current breaches of the rules, practice directions and court orders by the parties may also be taken into account as a relevant circumstance”.
It is not possible to produce a prescriptive list detailing what constitutes as a significant breach or a good reason for the default occurring. It simply depends on the case.
For assistance with relief from sanctions applications contact clerks@anvilchambers.co.uk