This update looks at three recent decisions concerning relief from sanctions following the much-publicised changes in April 2013 and the seminal case of Mitchell v News Group Newspapers Ltd.(1) Relief was denied in all three cases.
In Singh v Singh(2) the defendant, in contravention of an unless order, failed to serve a properly pleaded defence and, as a result, was debarred from defending the proceedings.
The defendant failed to file his defence and the claimant applied for summary judgment. However, by the time that the application was heard, the defendant had produced an unsigned draft defence and counterclaim. Notwithstanding this, the court granted an unless order requiring the defendant to serve his finalised and signed defence by 4:00pm that day. The defendant did so.
Subsequently, the claimant applied for an order striking out the served defence because, he contended, it disclosed no reasonable grounds for defending the claim. The court allowed the application and the defence was struck out. It also made a second unless order debarring the defendant from defending the claim unless he served an amended defence within a further defined period.
The defendant served his second defence before the deadline prescribed by the second unless order. However, the claimant considered that for various reasons, the defence was still deficient and applied for an order debarring the defendant from defending the claim. The court again allowed the claimant's application and debarred the defendant from defending the claim. The first-instance judge found that the second defence did not comply with Civil Procedure Rule 16.5 and, therefore, declared that the defendant had failed to comply with the second unless order. The defendant appealed the decision; alternatively, he applied for relief from sanctions.
The judge dismissed the appeal and refused to grant relief from sanctions. He found that the defendant's defaults (particularly, his "woefully deficient" second defence) could not be considered minor or trivial and there was no good excuse for them. He said that although it "may seem harsh" for the defendant to lose the opportunity to defend the claim, the court "now takes a tougher, and less forgiving, approach", as demonstrated by Mitchell and Durrant v Chief Constable of Avon and Somerset Constabulary.(3)
This is another robust decision on relief from sanctions. The defendant was debarred from defending the claim at all because of deficiencies with his defence, notwithstanding that:
- he otherwise complied with deadlines in two unless orders; and
- the deficiencies were arguably more the fault of the defendant's legal representatives, rather than of the defendant himself (given that they related mostly to the way in which the defence was pleaded).
The decision therefore acts as a reminder that parties still may be unable to obtain relief even where a sanction has been imposed due to a mistake or oversight by their legal adviser.
In Samara v MBI & Partners UK Ltd(4) the court considered whether the relief from sanctions regime applied to applications to set aside a default judgment under Civil Procedure Rule 13.
When the first defendant failed to acknowledge service of proceedings (which were arguably time barred), the claimant sought and obtained default judgment against it. The default judgment was served on the first defendant's solicitors, who spent a number of weeks seeking the claimant's agreement to set it aside, failing which an application would be made. The claimant's solicitors ignored much of this correspondence until six weeks or so later, when they replied confirming that they had seen it and were taking instructions.
Nothing further happened until 14 months later, when the claimant began taking steps to enforce the judgment against the first defendant. By this time, the judgment was 16 months old. However, the first defendant successfully secured an injunction against the enforcement proceedings and then applied to set aside the default judgment under Civil Procedure Rule 13.3. When the application was refused, the defendant appealed.
The court dismissed the appeal. It held that the new relief from sanctions regime applies to applications to set aside default judgments under Civil Procedure Rule 13.3, not least because it has "universal application to all rules" in the Civil Procedure Rules and is based on the changes to Civil Procedure Rule 1, which apply to all parts of the Civil Procedure Rules. In addition, there was nothing to suggest that Civil Procedure Rule 13.3 had been excluded from its reach. The court also referred to comments by Lord Dyson and Lord Justice Richards (in Mitchell and Durrant, respectively) that applications for relief must be made promptly, which had clearly not occurred here.
The court also indicated that even if the new relief from sanctions regime had not applied, its judgment would have remained unchanged, given the "totally unexplained and lengthy delay [which] would trump by a substantial margin the countervailing factors".
The delay here was extreme and the outcome, in the court's view, would have been the same before the new regime came into force in April 2013. However, the decision nonetheless acts as a useful confirmation of the regime's universal application across the Civil Procedure Rules.
In Clarke v Barclays Bank plc(5) the court refused the claimant's application to rely on new expert evidence when his original expert retired.
The claimant originally relied on expert evidence from a Mr Dall dated November 22 2010. In April 2013 the court approved procedural directions which provided that each party was permitted to adduce expert evidence from one expert. The directions provided for sequential service of expert evidence: the defendants were to serve their expert evidence about one month after the claimant had served any additional expert evidence.
In May 2013 (about two months before the claimant's deadline to serve any additional expert evidence), Dall informed the claimant's solicitors that he had retired and intended to withdraw from the case. The claimant's solicitors did not inform the court or the defendants of this. The defendants therefore served their expert evidence within the prescribed timescale and on the basis that the claimant intended to rely on Dall's original report. It was not until November 2013 that the claimant's solicitors informed the defendants that:
- Dall had retired;
- a Mr Yates had been appointed in Dall's place; and
- the claimant intended to rely on Yates's report (which would be provided by mid-December 2013).
The claimant served Yates's report on December 20 2013 and one month later issued an application for permission to rely on it. At first instance the claimant's application succeeded and he was permitted to rely on Yates's evidence (albeit in an amended form later served in February 2014). The defendants appealed.
The court allowed the appeal and dismissed the claimant's application for permission to rely on the further expert evidence. Referring to the guidance in Mitchell and AEI v Alstom,(6) the court held that dealing with cases in accordance with the overriding objective includes enforcing compliance with rules, practice directions and orders. Doing so ensures that court resources are shared fairly and, once it is well understood that the courts will adopt a firm line, litigation will be conducted in a more disciplined way (including fewer applications under Civil Procedure Rule 3.9).
The court held that the way the claimant withheld the information about his expert's retirement was wholly improper. Had the claimant disclosed it within a reasonable period, the court would have been sympathetic, particularly because Dall's withdrawal was outside the claimant's control. In addition, the sequential exchange of expert evidence meant that the defendants would suffer prejudice if the claimant was allowed to rely on Yates's evidence, given that he would have had the benefit of considering the defendants' expert evidence before instructing Yates. Overall, the court considered that the claimant's conduct amounted to a serious abuse of process.
Having so held, the court turned to consider the claimant's separate application to rely on Yates's report. The court balanced the claimant's serious abuse of process and the potential prejudice to the defendants against the serious prejudice to the claimant if permission were denied. The court considered that the balance of justice came down in favour of the defendants, and the claimant (who, the judge noted, only had himself to blame) would therefore have to rely on Dall's original report, albeit without Dall.
This decision again demonstrates the tough approach taken by the court and the impact that this is likely to have on the outcome of the case. Although it relates specifically to expert reports, the court made comments of wider application on the effect of Mitchell, including on the need for promptness when potential issues or problems come to light during proceedings.
These three cases (all of which were in the Chancery and Queen's Bench Divisions of the High Court) show the continued trend in these divisions of the High Court towards firm rulings relating to relief from sanctions.
In some cases (eg, Samara), this firm approach may not change the ultimate decision reached in the proceedings in question. However, arguably in others it will materially change the course of proceedings where rules and orders are not respected by parties. Whether the judge's comment in Clarke that satellite litigation relating to relief from sanctions will diminish as parties become more familiar with this firm approach remains to be seen, but in the meantime, it is certainly creating a significant body of new case law for practitioners to consider and seek to follow.
For further information on this topic please contact Daniel Wyatt or Tim Brown at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
(1)  EWCA Civ 1537.
(2)  EWHC 4571 (Ch).
(3)  EWCA Civ 1624.
(4)  EWHC 563 (QB).
(5)  EWHC 505 (Ch).
(6)  EWHC 430 (Comm).