Does the original checklist under rule 3.9 (relief from sanctions) have any role now? That question was considered by Hildyard J in Thevarajah v Riordan (9th August 2013, unreported). The Claimant sought to strike out the Defendant’s Defence for failure to comply with an unless order in relation to disclosure. The Defendant sought relief from sanctions under CPR r. 3.9. The Defendant admitted that he had failed to give disclosure as ordered and the judge found that there were serious failings.
The judge found that, although the checklist of relevant considerations under r.3.9 had been removed and replaced, they were nonetheless matters which the court needed to consider as they enabled the court to consider whether relief from sanctions was appropriate under the new r.3.9. Lest there be any doubt that he was reverting to the old ways of doing things the judge emphasised that the new r. 3.9 was not less rigorous but more so: the court should be slow under the new r.3.9 to draw the conclusion that relief from sanctions was appropriate and just.
Once non-compliance with an unless order was established, what was required for relief from sanctions was a material change in circumstances (Tarn Insurance Services Ltd v Kirby  EWCA Civ 19). There was no material change in circumstances inThevarajah; in fact the Defendant’s position had worsened. Further, the Defendant was unable to show he had taken reasonable steps to comply with the unless order and therefore no relief was granted.
This case highlights the fact that fundamentally rule 3.9 has not changed. The most important part of the old and the new rule is the emphasis on the court considering 'all the circumstances' so as to deal with the application justly. The original checklist was cumbersome but nonetheless a helpful steer as to what circumstances might be relevant. The new checklist is much less helpful: it merely repeats what a court must already take account of under the overriding objective. A judge who only took account of the need for efficiency, proportionality and compliance with court orders would be failing to take account of all the circumstances. Judges know that they are supposed to be tougher, but ultimately what most of them consider to be just in 'all the circumstances' is unlikely to have changed despite the best efforts of Jackson L.J.