After a veritable tsunami of contradictory cases, ranging from the ridiculously over draconian to the equally lax, the Court of Appeal has formed the view that its judgment in the infamous Mitchell case has been 'misunderstood' and is being 'misapplied by some courts'. In Denton, it set out a new three stage test which courts should apply when considering whether to grant a party relief from sanctions:
- How serious / significant is the breach?
- Why did the breach happen?
- Evaluation of 'all the circumstances of the case'
The Court of Appeal has clarified that if there is a serious or significant breach and there is no good reason for this, the application for relief from sanctions will not automatically fail. The court must look at all the circumstances of the case, rather than take a zero tolerance approach.
Parties and their representatives must also remember that they are obliged to assist the court in conducting litigation efficiently and at proportionate cost. This means not only complying with rules, practice directions and court orders, but also cooperating with other parties and their lawyers. The courts will frown on litigants and lawyers who take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. Worse still, they may penalise such aggressive tactics in costs, both on the application and at the end of proceedings.