The recent case of Gladwin v Bogescu highlights the growing trend of the court to refuse to grant relief from sanctions where the legal representative has caused the default in question.
Unsurprisingly the court chose to reaffirm its position that it will not tolerate a failure to comply with directions, rules and orders issued by the court.
Since the Jackson reforms a more proactive and robust approach to case and cost management has been adopted with a less lenient attitude to unfounded delays and breaches to civil litigation.
The case of Reese is a clear example of this less lenient attitude. This was a relatively simple road traffic accident case which involved a driver colliding with and injuring a motorcyclist. However, the issue at hand was not over liability or the amount of damages but rather an unfortunate mistake by the claimant’s legal representative by not serving witness statements in accordance with an order issued by the court.
The claimant’s solicitor had asked for an extension of time to serve the witness statements, which was agreed and then subsequently missed. This was due to the case being transferred to another solicitor within the firm and a failure to pass on the relevant information regarding the extension of time granted. This unfortunately resulted in a severely delayed application for relief from sanctions and permission for the claimant to give oral evidence.
The court at first instance, relying on the leading judgement of Denton v TH White and the application of CPR 3.9 came to the conclusion that the breach was significant and that there was no good reason for the delay. However, the judge took the view that if the claimant’s application for relief from sanctions was refused, then it would unjustly penalise the defendant as they would not be able to exercise the right to cross examine the claimant. The claimant’s application for relief from sanctions was therefore allowed and the trial adjourned.
On appeal it was held that the judge at first instance had erred in his assumption that he could not act more robustly to stop the claimant from relying on his witness statement and had further fallen into error by failing to have proper regard to his powers to strike out the claim altogether in response to the claimant’s breaches. It was further determined that the judge had too readily followed the path of adjournment and should not have adjourned the case even if it would have been fatal to the viability of the claim as a whole to do so.
Consequently, the appeal judge decided that the learned judge should not have indulged the claimant by adjourning the trial and granting relief from sanctions, but instead should have struck out the claim entirely.
As claimant-focused legal representatives, this case is incredibly pertinent to us as it is a clear reminder of the need to take heed of court directions and orders and furthermore to diarise efficiently where time limits need to be met.
We are in an age where the court is becoming more and more intolerant of a lax approach and are more than prepared to fully strike out claims where breaches are serious and unfounded. This is even more important when taking into account the reliance and trust our clients place in us to handle their cases.