As practitioners up and down the land await the Court of Appeal judgment on the conjoined appeals in which theMitchell guidance is due to be considered further with trepid anticipation, it is encouraging to see that the judiciary has been taking a more common sense approach to applications for relief from sanctions.
In Newland Shipping and Forwarding Ltd v Toba Trading & Ors the High Court granted relief from sanctions and set aside a judgment in default obtained for a specific amount against the defendants. This was despite the finding of a deliberate, but trivial non-compliance. The third defendant had initially alleged ineffective service of proceedings which had led to his failure to file an acknowledgement of service as required under CPR 10.1. This argument was later abandoned. He also submitted that he had reasonable prospects of success. The court in considering all the issues, including a number of allegations against the third defendant, which would have tarnished his reputation, allowed relief whilst accepting the defendant had borderline prospects of success. It was felt that the amount that judgment was entered for exceeded the amount the claimant could reasonably expect to recover. Also, if the judgment was not set aside the defendant would be denied the opportunity to clear his name of the allegations against him. However, in the circumstances, it was held appropriate to attach a condition to the order setting aside judgment and the defendant was asked to make a payment into court in relation to the action as well as costs. The judge noted that the conjoined appeals on which further guidance on Mitchellwas to be given was imminent, but as neither party requested deferral of judgment until these were heard he went ahead with his judgment.
Recently, in an unreported case of Stephen Warner v John Merrett, Judge Mackie QC, granted relief to the receiving party who had failed to provide details of additional liabilities when serving their bill of costs in assessment proceedings as is required. The paying party instantly took the opportunity to challenge the recoverability of both solicitors and counsel’s success fees and the ATE premium in their points of dispute. This was on the basis that these were not recoverable unless the court ordered otherwise pursuant to CPR 44.3B(1). The receiving party made an immediate application for relief from sanctions upon receipt of the points of dispute and was successful as the court considered the breach to be trivial.
It was emphasised that whilst the controversial decision in Mitchell provides guidance on how to apply the new CPR 3.9, the judgment should not be applied like a rule or Statute. The court noted there had been no previous breaches and the receiving party had acted promptly when they became aware of their omission.
With judgment on the conjoined cases due in a matter of hours, one can only hope that this decision settles what has become a very unsettled landscape for all concerned and enables those seeking to do justice to do that.