Denton & Ors v TH White Ltd & Ors  EWHC Civ 906
The Court of Appeal have recently handed down their judgment in a series of appeals arising out of applications for Relief from sanctions. The appeals were all heard together so the Court could attempt to bring some clarity to Mitchell and the approach to applications for relief from sanctions.
Denton v T H White Ltd
On 23 December 2013 HHJ Roderick Denyer QC granted the Claimant's Application for leave to serve additional evidence, even though the 10 day Trial fixed for January would have to be re-listed.
The Claimants last statements were served in July 2011, the Defendant in July and November 2012. The Judge noted "newish" matters had arisen because the Claimant had made changes to the layout of the milking parlour which was subject to the claim, the claim was about the installation of this. The Claimant knew for 12 months these changes may be required but failed to apply for directions or inform the Defendant so they may inspect the parlour before the changes were made.
The Judge felt this was an unenviable position and he recognised the new "case management world". The Claimant had not applied in good time and had sprung new statements on the Defendant. However, the Judge concluded that if the statements were not allowed it would be a "ridiculous Trial" and therefore he granted leave. He would address the issue of costs later.
Decadent Vapours Ltd v Bevan and others
HHJ Jarman QC refused to grant the Claimant relief from sanction to pay hearing and Application fees by the time specified in an unless Order, with the result that the claim was struck out. The Judge did not consider this to be a trivial breach and refused leave to appeal.
In evidence the Claimant’s solicitor stated that a Court officer had told him that the payment of fees could follow the filing of the pre trial checklist. The Judge firmly stated that the solicitor was an officer of the Court and was well aware of the terms of an unless Order. The Judge agreed that when considering whether the breach was trivial it was relevant that CPR 3.7 makes clear the importance of paying Court fees, and the sanctions for failing to comply.
Utilise TDS Ltd v Cranstoun Davies  EWHC 834 (Ch)
The Appellant filed their costs budget late (4:41pm on the designated date). The Court ordered that as the budget had not been filed on time CPR 3.14 should apply so that the Appellants costs were limited to Court fees only. This decision was appealed.
The District Judge considering Mitchell refused relief stating no reason had been provided for non compliance with the order, and that this was not the first breach as the Appellant had also failed to update the Court as to the outcome of negotiations. It was stated that viewed in isolation filing the budget less than 45 minutes late could be considered trivial, however, a Court may take into account other breaches.
Court of Appeal Judgment
The basic message from the appeals was that Mitchell had been misunderstood by all, and misapplied by some Courts. To assist the Court provided a new 3 stage test when considering an application for relief from sanctions Under CPR 3.9:
A New 3 stage test
Stage 1: Identify and assess the seriousness and significance of the failure. The Court should not initially consider other unrelated failures that may have occurred in the past, i.e. no cumulative totting up of non trivial, or insignificant breaches.
If the breach is not serious or significant, the Court is unlikely to need to spend much time on stages 2 and 3 and the prospects of relief being granted should be greater.
It is noteworthy that the Court of Appeal have sought to move away from the use of the terms “trivial” and “non-trivial”, replacing them with the words “serious” and “significant”.
Consider why the failure or default occurred?
Unhelpfully, the Court of Appeal have given no further guidance on this point, referring simply to the guidance in Mitchell as being not exhaustive. Such guidance detailed the pressure of work, or being unable to get to the office due to inclement weather, as not being a good reason.
Re emphasising of the provisions of CPR 3.9, i.e. when considering an application the Court should consider “all the circumstances of the case, so as to enable it to deal justly with the application”, including:
- Whether the breach has prevented the Court or the parties from conducting the litigation (or other litigation) efficiently and at proportionate cost; and
- The importance of complying with rules, practice directions and orders.
There is greater emphasis on “all the circumstances” as oppose to simply concentrating on the specific factors referred to in the new 3.9. This suggests that relief will be granted in circumstances where post Mitchell, the door was firmly shut.
Other points arising
The judgment contains some interesting language and warnings about future conduct.
The Court warned that it is “wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanction will be denied and they will obtain a windfall strike out or other litigation advantage”. In such circumstances draconian costs consequences may apply
Also of interest is the fact that the Court of Appeal, in an almost throw away comment, have confirmed that an indemnity basis costs award would free the winning party from being bound by its costs budget.