We have had some helpful clarification from the Court of Appeal on its earlier guidance on sanctions and missing court deadlines (Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537).

Following the Mitchell case, we had seen various differing approaches in relief from sanctions. Some courts adopted a very inflexible interpretation of the Mitchell guidance, others took a more lenient approach.

Uncertainty had - unsurprisingly - generated yet more satellite litigation. The Court of Appeal has attempted to ensure more co-operation between parties and a less adversarial approach.

Opportunistic attempts to take advantage of technical or trivial breaches are likely to be met with heavy costs sanctions.

Denton v T H White Ltd, Decadent Vapours Ltd v Bevan & ors, Utilise TDS Ltd v Davies & ors [EWCA] Civ 906

In a judgment handed down on 4 July 2014, the Court of Appeal has held that a three stage test should be applied when considering whether to grant relief from sanctions:

  • Assess the seriousness and significance of the breach giving rise to the sanction;
  • Consider the reasons for the breach; and
  • Evaluate all the circumstances of the case.

As to the third limb of the test, relevant factors will vary (of course) but the efficient and proportionate conduct of litigation and the importance of compliance with rules, practice directions and court orders must be given particular weight. Relevant factors will include the promptness of the application for relief as well as other past or current breaches.

The judgment also addressed concerns that the Mitchell guidance has generated satellite litigation with parties hoping to obtain a litigation advantage or costs windfall. The Court emphasised that such opportunism is wholly inappropriate. Parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief could be penalised by heavy costs sanctions.

None of this affects the importance of meeting court deadlines, or the risks to those who fail to meet them, but this more flexible interpretation of the guidance is welcome.