Relief from sanctions and CPR 3.9 since the Court of Appeal decision inMitchell

You will no doubt recall Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, the case coming out of the "Plebgate affair", in which the Court of Appeal confirmed a much stricter approach to applications for relief from sanctions. Andrew Mitchell MP, whose solicitor had failed to file his costs budget on time, will be unable to recover his future costs beyond the court fees paid.

It was a controversial judgement. Is it right to decide a case based not on what is just in that particular case but on wider considerations about the effective operation of civil litigation? Perhaps not. But in any event, as much as predicted, Mitchell had led to a wave of similar (often opportunistic) applications where deadlines have been missed.

Under Mitchell, the Court of Appeal set out a two stage test for granting relief from sanctions. First, is the breach trivial and, if so, was the application for relief made promptly?  The court will usually grant relief where there has been a failure of form over substance which is no more than an insignificant failure to comply with an order. 

Secondly, if the breach is not trivial, was there a good reason for it?  The burden is on the defaulting party to show that there was a good reason.  Accidents or debilitating illnesses may constitute good reasons. Later developments in the course of the litigation process are likely to be a good reason if it can be shown that the period for compliance originally imposed was unreasonable.  Solicitors having too much work to do will not be a good reason. 

The new regime has a wide effect. It has been applied to exchange of witness and expert evidence, disclosure, security for costs applications, applications to set aside default judgment, costs proceedings, appeal of a strike out application, etc.

Since this decision in November 2013 we have seen the courts follow a strict approach:

  • In Associated Electrical Industries Ltd v Alstom UK [2014] EWHC 430 (Comm) the court rejected the claimant's application for retrospective extension of time to serve the particulars of claim. The claimant was 20 days late due to the court's failure to notify it about the fact that the acknowledgment of service had been filed. The court held that, regardless of the difficulties, the claimant had failed to act in a timely manner.
  • In M A Lloyd and Sons Ltd (trading as KPM Marine) v PPC International Ltd (trading as Professional Powercraft) [2014] EWHC 41 (QB) the judge, proactively and of his own volition, made a debarring order limiting the claimant's evidence at trial to certain jurisdictional issues.

On the other hand, there have been a number of perhaps more realistic decisions showing the courts' reluctance to apply the strict approach in Mitchell:

  • In Lakatamia Shipping Co Ltd v Nobu Su and others [2014] EWHC 275 (Comm) relief was granted in respect of disclosure made 46 minutes late on the grounds that the non-compliance was trivial, caused no prejudice to the claimant and an application for relief was made promptly.
  • In Wain v Gloucestershire County Council and others [2014] EWHC 1274 (TCC) the court held that the filing of a costs budget one day late was, properly analysed, a 'trivial' breach. Unlike inMitchell, no disruption had been caused to the court's timetable. The court noted Leggatt J's judgment in Summit Navigation Ltd and others v Generali Romania Asigurare Reasigurare SA(2014) EWHC 398 (Comm) and the undesirability of parties seeking to exploit trivial or insignificant breaches.

The general theme seems to be that the courts are applying a pragmatic approach, and have been critical of opportunistic applications. But, that theme is not consistent especially at the High Court.

Missing court deadlines can have very drastic consequences, quite out of tune with the seriousness of the procedural mistake. It looks as if the post-Mitchell litigation will run for a little while yet.