Relief from sanctions
Where two of the defendant’s witness statements were posted on the date on which they were required to be served, relief from sanctions was required if the defendant was to rely upon their evidence. While the non-compliance, taken by itself, might be characterised as trivial (see Mitchell v News Group Newspapers Ltd), it had to be seen against the background of a previous extension of time and a failure to make the application for relief promptly. The Court of Appeal set aside the decision giving relief from sanctions (Durrant v Chief Constable of Avon & Somerset Constabulary).
In an action concerning the defendant’s entitlement to deferred consideration following the sale of a business, the defendant failed to establish that reports made by a bank and an accountant in the months preceding the litigation were protected from disclosure by litigation privilege. The defendant failed to establish that litigation with the claimant was reasonably contemplated or anticipated at the relevant time and that the dominant purpose of the reports was the litigation that followed (Starbev GP Ltd v Interbrew Central European Holding BV).
Variation or revocation of orders
Where an application is in substance one under CPR 3.1(7) to vary or revoke a previous order, it must satisfy the criteria in Tibbles v SIG Plc, recently considered in Mitchell v News Group Newspapers Ltd. In the present case, the Court of Appeal held that it was not open to the judge simply to make an inconsistent order granting relief under CPR 3.9 where another judge had already refused to grant relief from sanctions. The late compliance with an unless order to give disclosure could not amount to a material change of circumstances and there was no other basis for an application to vary or revoke the order refusing relief from sanctions (Thevarajah v Riordan).
Service of claim form
The court may grant a claimant an extension of time for serving a claim form under CPR 7.6(2) in the absence of a good reason for the failure to serve in time, provided there are exceptional circumstances. There was no good reason, nor were there exceptional circumstances, in the present case. The claimant should have served the claim form within time and applied for an extension of time for serving the particulars of claim (Malcolm-Green v And So To Bed Intellectual Property Enterprise Court 16 December 2013).
Where the claimant lost on every material issue in an essentially speculative claim and had pursued the litigation as if it was an act of war, it was appropriate to award the successful defendants their costs on the indemnity basis. The claimant’s solicitors had been responsible for interminable and heavy-handed correspondence, in some circumstances highly aggressive and in others unacceptable in content, there had been extravagant demands for disclosure, some of which was wholly disproportionate, and deeply flawed expert evidence. In reaching this conclusion, it was appropriate to pay some regard to the enormous drain imposed by such a case on the resources of the court and the court system to the prejudice of other litigants with deserving claims (Excalibur Ventures LLC v Texas Keystone Inc and others).