The issue of relief from sanctions under the Jackson regime has gained widespread interest in recent months. Following the decision in Mitchell v News Group Newspapers Limited (2014), it was thought that the courts would take a hard-line approach to granting relief, thereby creating an environment for satellite litigation and an ongoing obsession with procedural default.
Thankfully, recent decisions have indicated that relief will be granted where appropriate and that a common sense approach will prevail.
In Wain v (1) Gloucestershire County Council (2) Atkins (3) Gloucestershire Highways (4) Teasdale (2014) the claimant applied to have the fourth defendant’s costs budget struck out because it had been filed 6 days and not 7 days before the first CMC. In line with Mitchell the claimant sought to argue that the breach was not trivial and that the fourth defendant had given no good reason as to why the budget was filed a day late. In dismissing the application the judge held that the delay did not prejudice the claimant, did not disrupt the court timetable and was in fact trivial.
Two years ago it was Jackson LJ in Fred Perry v Brand Plaza (2012) who said “there is a concern that relief against sanctions is being granted too readily at the present time. Such a culture of delay and non-compliance is injurious to the civil justice system and to litigants generally. … After 1st April 2013 litigants who substantially disregard court orders or the requirements of the Civil Procedure Rules will receive significantly less indulgence than hitherto.”
Later followed Mitchell where the Court of Appeal upheld the court’s decision to strike out the claimant’s costs budget because it was filed late stating “the relationship between justice and procedure has changed.”
A large number of reported cases followed in which the courts were content to take a hard line approach, leaving many to wonder if the obsession with default would ever end. The recent decision in Wain suggests it might be starting to.
Mitchell made clear that relief will likely be granted where a breach is of form rather than substance, or is trivial. The problem is that ‘trivial’ was never defined leading many to try their luck. This will no doubt continue but should happen less often, provided the common sense approach continues to prevail.