There are an increasing number of reported cases about breaches that can be characterised as “trivial” and thus meriting relief from sanctions without the need to show a “good reason”, providing the application was made promptly. One example is Adlington – referred to in a blog posting on 10th February.
Hamblen J considered this issue very recently in Lakatamia Shipping Co Ltd v Nobu Su and others  EWHC 275 (Comm). The Defendant was required by an Unless order to serve a disclosure list on 17thJanuary 2014. The order did not specify the time for compliance, but the default date provided by the Commercial Court Guide was 4:30pm. The Defendant mistakenly thought it had until 5pm to serve the list. At 4:45pm – 15 minutes late – the Defendant sought to exchange lists with the Claimant. The Claimant replied that the Defendant was out of time. The Defendant proceeded to serve its list unilaterally at 5:16 – 46 minutes late.
The Defendant made a prompt application for relief from sanctions. This was opposed.
The judge noted that the delay was measured in minutes rather than hours and considered it was a “no more than insignificant failure to comply” and could be characterised as “narrowly missing a deadline” – examples of trivial breaches given by the Court of Appeal in Mitchell. The judge also addressed the consequences of the breach – these were minimal. There was no prejudice. This re-enforced the conclusion the breach was trivial.
The Claimant sought to rely on a history of non-compliance to say that this, further, breach, should not be treated as trivial. The judge disagreed, holding “what matters is whether the non-compliance which resulted in the sanction is trivial and… that involves a consideration of the default in question, not other defaults at other times”. The history of default “did not affect the characterisation of the relevant non-compliance or metamorphose a trivial default into a serious default”.
Given that the Court of Appeal held that relief will “ordinarily” be granted for trivial breaches on a prompt application, Hamblen J held that “compelling circumstances” were likely to be required to prevent the Court granting relief for a trivial breach.
The judge examined the factors set out in the old “checklist” and considered these mainly pointed towards granting relief. The judge noted that other court users were not affected by the breach and that there was no prejudice to the Claimant. The history of default was a factor against granting relief, but was not sufficient to prevent relief being granted.
Does this mean that relief for trivial breaches, notwithstanding a substantial history of default, may be granted more readily following Mitchell than before? The answer must be no. If the history of default is so bad that relief would not have been granted even before the CPR changes, then (it seems to this author) this should constitute “compelling circumstances” preventing a Court from exercising its discretion in the post-Mitchell legal universe.