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Procedure: – A more robust approach?

Has the Court of Appeal already forgotten the new “more robust” approach to applications for relief from sanctions introduced in Mitchell and reinforced in Durrant?

One could be forgiven for thinking so following Nelson v Circle Thirty Three Housing Trust Ltd [2014] EWCA Civ 106.

The respondent social housing landlord (L) sought possession of a property let to the first appellant tenant (T). T failed to comply with disclosure. On 19 March 2013, an order was made that unless T disclosed her credit card statements from 1 January 2011 to date her defence would stand struck out without further order. T failed to comply, serving only statements for 2011 and March 2013.

On 5 April 2013, HHJ Collender heard from solicitors for both parties. T’s solicitor was unable to provide a satisfactory explanation for the default. The judge concluded that the defence stood struck out and he made an order for possession. T appealed. She was permitted to adduce fresh evidence, which showed that her bank was responsible for her default, by failing to provide her with the statements despite numerous requests.

The CA concluded that the possession order had to be set aside because T’s solicitor had given the judge a “completely muddled picture” of her case. It then noted that the court could grant relief from sanctions of its own motion, invited T’s counsel to apply for relief from sanctions, and granted relief on the spot.

It is hard to see how this decision could be reached in light of Mitchell and Durrant. The breach was not trivial. There may have been a good reason for it, but no formal application for relief was made; and an informal request only appears to have been made at the CA’s instigation around 9 months after the sanction took effect.

It may be that the CA will now seek to temper the somewhat extreme stance that emerged with Mitchell. Alternatively, Nelson may simply be a rare exception. An indication that the latter may be the case is provided by the conclusion of Sir Robin Jacob that relief should be granted because of the “very special circumstances” in Nelson, including the “very, very substantial compliance with the disclosure order”.

Winston Jacob / 1st Mar 2014


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