As practitioners continue to the grapple with the realities of the post-Mitchell climate, several reported decisions are beginning to demonstrate how the courts are applying the “new more robust approach” to applications for relief from sanctions. 

In Durrant v Chief Constable of Avon and Somerset [2013] EWCA Civ 1624, the defendant applied for relief from sanctions in order to allow then to rely on witness evidence served out of time. Permission had been allowed by the lower court, despite the defendant having a history of delays. In support of their application, the defendant had relied on a combination of reasons for the default, such as professional pressures, the holiday period, bad weather and operational commitments of the officers. The Court of Appeal held that relief from sanctions should not have been granted. Allowing the application led to an adjournment of the trial, thereby failing to promote the efficient conduct of litigation and having a negative effect on other court users. Further, such reasons as offered by the defendant were not unforeseeable.

The refusal of permission is particularly striking given that the allegations included false imprisonment, race discrimination and racial targeting, in part against named officers who will now be unable to give evidence in response. The degree to which such factors were taken into account by the lower court when determining the application was criticised. The Court of Appeal held that “considerations of that kind have only a limited role to play in the context of relief from sanction. They may be relevant to the question of how much time should be allowed for service of witness statements in the first place, and even to the question of what sanction should be imposed for failure to meet the deadline; but once the court has determined both the deadline and the sanction applicable for failure to comply, we do not think that such considerations can properly carry much weight in determining whether to grant relief from the sanction for non-compliance

Somewhat contrastingly, the decision in Adlington and others v ELS International Lawyers [2013] EWHC B29 (QB) provides an example of relief from sanctions being granted. HHJ Oliver –Jones QC, sitting as a judge of the High Court, was concerned with the claimant’s failure to comply with an unless order, which required 8 individual particulars of claim in a group action to be filed and served by a particular date. In default, those individual claims were struck out.

Relief was granted. The court held that the appropriate question is whether the default by a party or its solicitor is minor or trivial and, if not, whether there was a good excuse for it. Perhaps surprisingly, the default in serving the particulars of claim was found to be trivial, and to be one of “form rather than substance”. The particulars had been drafted before the deadline, but could not been served as the clients were on holiday and therefore unable to provide a signature. The judge also held that there were no negative effects to either the defendant or to “the efficient conduct overall” of the litigation, given that the default only affected a very small proportion of the total claims. 

The judge held that if he was wrong to find the breach a trivial one, then in any event there had been a “good reason” for the default. The fact that the claimants were in fact on holiday at the time was beyond the solicitor’s control, and therefore could not amount to “incompetence”, even if there was “evidence of some general lack of competence in the overall management of the claims”

Paragraph 34 of the judgment is particularly interesting, stating that the judge had not focused exclusively, or even primarily, on doing justice between the parties in this individual case. However, the judge went on the highlight that a case need not be exceptional in order for relief to be granted, stating that post-Mitchell, “the relationship between justice and procedure has not changed so as to transform rules and rule compliance into trip wires”. This is a phrase which will undoubtedly be cited by applicants in future, although Adlington does seem to be at the extremes of what can be characterised as “trivial” or a “good reason”.