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CPR 3.9 – relief from sanctions

In Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624 the Court of Appeal gave its second decision on the new CPR 3.9.

Anyone who thought its decision in Mitchell (December 2013 Round-Up) harsh and hoped that its approach might have mellowed will be disappointed.

The Defendant sought relief from a sanction imposed for failing to serve his witness statements in time. The sanction precluded him from calling any oral evidence at trial. The Court of Appeal refused relief.

The judgment reinforces the robust approach of Mitchell. Of particular interest is the court’s refusal to grant relief in relation to two witness statements that were served merely a day late. The court accepted that this breach, taken by itself, might be considered trivial, but still refused relief, placing particular weight on the Defendant’s failure to apply promptly (2 months after the sanction took effect).

Following Mitchell and Durrant a party in need of relief from sanctions may feel rather pessimistic. The following advice should assist:

  1. Apply as soon as possible – delay is simply self-defeating.
  2. Note CPR 3.8(3): “Where a rule, practice direction or court order – (a) requires a party to do something within a specified time, and (b) specifies the consequence of failure to comply, the time for doing the act in question may not be extended by agreement between the parties.” Often, therefore, the innocent party cannot waive the default. Apply to court promptly irrespective of their stance.
  3. If possible, contend that the breach is trivial. Relief is likely to be granted for trivial breaches (Mitchell, para. 40). Examples are a failure of form rather than substance or a narrowly missed deadline. These are not exclusive – look for others.
  4. In considering whether a breach is trivial regard must be had to the consequences of the breach: Adlington v Els International Lawyers LLP, unreported, 12 December [2013] EWHC (QBD), para. 32(b). If there are no adverse consequences, Adlington supports the argument that the breach is therefore trivial.
  5. Demonstrate a good reason for the breach. A good reason is likely to obtain relief (Mitchell, para. 41). Whilst incompetence is not a good reason (Mitchell, para. 48), what constitutes incompetence is open to argument. In Adlington the court concluded that a solicitor’s ignorance of his client’s holiday arrangements, which rendered them unable to sign documents in time, was a good reason.
  6. Developments within the litigation which show that, in retrospect, the original period for compliance was unreasonable may provide a good reason (Mitchell, para. 41).
  7. Note that the court is not bound to refuse relief merely because there is no good reason (Mitchell, para. 16).
  8. Adduce evidence of prejudice to the applicant in the absence of relief. In Mitchell the court highlighted the lack of any evidence of prejudice to the applicant (para. 57).
  9. Regard must still be had to all the circumstances (Mitchell, para. 37). Therefore put forward everything in your favour.
  10. Evidence of the above is crucial – do not simply rely on submissions.
  11. Note that the court can grant partial relief from sanctions (Mitchell, para. 58). Such relief was given in Forstater v Python (Monty) Pictures Ltd [2013] EWHC 3759 (Ch). An applicant with questionable merits may be able to obtain partial relief.

Winston Jacob / 1st Feb 2014


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