If an ‘unless’ order is imposed and then breached, the court should take into account the original breach when considering...
...an application for relief from sanctions held the Court of Appeal in Oak Cash & Carry Ltd v British Gas Trading Ltd  EWCA Civ 153. In any case, applications for relief from sanctions should be made promptly.
Two points arose on the appeal:
The defendant failed to file a pre-trial checklist. As is typical, the court made an unless order. The defendant failed to comply with this either until two days had passed beyond the time limit for compliance.
The claimant applied for judgment in default of defence, which was granted. Only then did the defendant apply for relief from sanctions.
The Judge at first instance granted relief, but this was overturned on appeal to the High Court. The Court of Appeal dismissed the appeal.
At stage 1 of the Denton test, the court must ignore the defaulting party’s historic breaches and assess the breach in respect of that party is seeking relief. An unless order, however, does not stand on its own: it gives that party additional time for compliance and specifies a sanction in default. The fact that a party has breached an unless order is a pointer towards seriousness and significance as it is in breach of two successive obligations to do the same thing and the court has already underlined the importance of doing that thing.
As for the test at stage 3, if the defendant had made an immediate application for relief, the Court of Appeal would have been strongly inclined to grant relief. The late filing of the listing questionnaire had not had any adverse impact on the conduct of the action. The effect of the late application, however, was that the trial date was lost. This lack of promptness was seen as the critical factor.
David Sawtell / 4th Apr 2016
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