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Procedure: Relief from sanctions

Any defaulting party who had lost all hope since Mitchell [2013] EWCA Civ 1537 may take some comfort from Lakatamia Shipping Co Ltd v Nobu Su & Ors

 [2014] EWHC 275 (Comm) in which relief from sanctions was granted. 

The default in question was the failure on the part of Ds’ solicitors to comply with an Unless Order in respect of disclosure. Although the order had specified a date for compliance, it had not specified the time of day by which disclosure was to be complied with. Ds’ solicitors thought that 5pm was the time for compliance. The Commercial Court Guide (at D19.2), however, provides that absent a specific provision, the latest time for compliance is 4.30pm on the day in question. D’s disclosure was 46 minutes late.

An application for relief from sanctions was made the next working day. In granting relief, Cooke J considered the following was relevant:

  • The delay (46 minutes) was a delay measured in minutes not hours. Ds “narrowly missed the deadline”, a circumstance in which the CA in Mitchell contemplated as being de minimis.
  • The non-compliance was trivial. It caused no prejudice to C.
  • The relevant default to consider was the default in question, not other defaults at other times.  The history of default may be a relevant general circumstance to take into account but it does not affect the characterisation of the relevant non-compliance or metamorphose a trivial default into a serious default.
  • The application for relief was made promptly.
  • There was no good reason for the default insofar as it was due to a mistake rather than extraneous circumstances; however, Ds’ solicitors’ error was at least understandable given the silence of the order on this point, and C’s solicitors themselves were also not clear about the deadline.
  • The failure to comply was non-intentional.
  • The failure to comply was caused by Ds’ solicitors’ mistake.
  • The trial date could still be met were relief granted.
  • The granting of relief would not cause prejudice to C. It would enable Ds to defend the substantial claims made on their merits.

C itself was in breach of the order and had C provided a list or sought to exchange lists prior to the deadline, it is likely that Ds would have done likewise.

Philippa Seal / 1st Mar 2014


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