#16081 - Relief From Sanctions - BPC Civil Litigation

Sanctions & Striking Out

PD 29, para 7, Failure to comply with case management directions

• Where a party fails to comply with a direction any other party may apply for an order that: he (1) must comply or (2) for a sanction or (3) both.

• The party entitled to apply (i.e. the innocent party) for such an order must do so without delay; but should first warn the other party of his intention to do so.

• The court may take any such delay into account when deciding whether to impose an order for sanction or granting relief from a sanction imposed by rules/PD.

• Principles:

1. Court will not allow a failure to comply with directions to lead to postponement of trial, unless exceptional circumstances

2. If it is practical, court will exercise its powers in a manner enabling the court to come to trial on the date/within the period set.

3. Court will assess what steps each party should take to prepare the case for trial; direction that those steps are taken in the shortest possible time; and impose sanction for non-compliance.

   1. Such sanction may, for eg: deprive a party of a right to raise or contest an issue, or to rely on evidence to which the direction relates.

4. Where it appears that 1+ issues are, or can be, made ready for trial at the time fixed; but others cannot court may direct that the trial will proceed on the issues which are then ready, and direct that no costs will be allowed for any later trial of the remaining issues; or that those costs will be paid by the party in default.

5. Where the court has no option but to postpone trial will be for the shortest possible time, and will give directions for taking of necessary steps in the meantime as rapidly as poss

6. Litigants and lawyers must be in no doubt that the court will regard postponement of trial as an order of last resort.

   1. Where it appears inevitable to postpone trial the court may exercise its power to require a party as well as his legal rep to attend court at the hearing where such an order is sought.

7. The court will not postpone any other hearing without a very good reason;

   1. failure of a party to comply on time with directions previously given is NOT a good reason.

3.9, Relief from sanctions

• (1) On an application for relief from any sanction imposed for a failure to comply with any rule/PD/court order the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need:

  • (a) for litigation to be conducted efficiently and at proportionate cost; and

  • (b) to enforce compliance with rules, PDs and orders.

• (2) an application for relief must be supported by evidence

Commentary, 3.9.1, Effect of rule in general terms

• court’s general discretion to give relief from any sanction.

• R3.9(1) applies in cases where: a party applies for an extension of time in order to negate procedural sanction already suffered because of failure to comply with a time limit set by a rule/PD/order.

• The sanction imposed may be:

  • the entry of judgment against the defaulting party (eg an unless order)

  • the loss of right to call a witness (eg under r32.10, consequence of failure to serve witness statement/summary). 32.10 amounts to a ‘sanction’, so 3.9 applies. Or eg failure to disclose expert report consequence, cannot use expert evidence at trial.

  • Loss of right to participate in a hearing (eg a debarring order, penalty under 47.9(3).

• In some cases, specific rule provision is made for relief from particular sanctions, eg:

  • Part 13 [setting aside or varying default judgment]

• R3.9 does NOT apply where the sanction imposed is an order for the payment of costs in such case, the party in default may obtain relief only by appealing against the order for costs (r3.8(2)).

• Refusal to grant relief against a debarring sanction (loss of right to participate in a hearing) does not contravene Art 6 ECHR, provided that such refusal is proportionate and for a legitimate purpose.

  • In Momson, legit purpose of requiring the party to comply with a court order that had been made with a view to achieving a fair trial.

  • If court concludes that the party’s non-compliance with the disclosure order meant that a fair trial was not possible, judge balanced the 3.9 factors and considered the OO - default party not granted any relief.

  • CA: this was compliance with Art 6 ECHR. Is required, so that litigants should not be able with impunity to avoid compliance with court orders made for the purpose of holding a fair trial.

• R3.9 is engaged not simply where a party has failed to comply with any rule/pd/order; but only where a sanction has been imposed as a result of that failure:

• The Mitchell/Denton principles CA guidance on how to deal with r3.9 applications.

  • These principles now underscore the court’s approach to rule-compliance in all circumstances, whether or not r3.9 itself is engaged.

Commentary, 3.9.3, formulation of rule since April 2013

• Under r3.9, court is required to consider ‘all the circumstances of the case, to enable it to deal justly with the application’.

• 2 factors mentioned specifically:

  1. (a) need for litigation to be conducted efficiently & proportionate cost

  2. (b) need to enforce compliance with rules/PDs/court orders

  • Under r3.9, all circumstances should be considered, but these two factors specifically mentioned should be given more weight than other factors.

  • Hence court should treat with cautions guidance given in cases interpreting the pre-April 2013 formulation of the rule.

• Mitchell v News Group Newspapers (2013), HC: C had failed to lodge a cost budget within seven days prior to first hearing of his defamation claim as required under r3.13. the Master limited his budget to court fees. At a subsequent hearing the Master, on the facts, refused relief from sanctions under r3.9 but gave permission to appeal on the question of whether the court was adopting too strict an approach. Appeal went to CA.

• CA, Mitchell: dismissed the appeal; CA considered application of r3.9 and the question ‘how strictly should the courts now enforce compliance with rules/PDs/court orders?

• CA Guidance from Mitchell:

  1. If a breach is trivial the court will usually grant relief; PROVIDED that an application is made promptly.

     • Thus court will usually grant relief if there has been no more than an insignificant failure to comply with an order;

     • eg, where there has been a failure of form rather than substance;

     • or eg where the party has narrowly missed the deadline imposed by the order but has otherwise fully complied with its terms.

  2. If the non-compliance cannot be characterised as trivial -> then the burden is on the defaulting party to persuade court to grant relief.

     • Court will want to consider why the default occurred.

     • If there is a ‘good reason’ for the default court will likely decide that relief should be granted.

  3. EG good reason:

     • if the reason why a doc not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident that may be a ‘good reason’.

     • Later developments in the course of the litigation process are likely to be a ‘good reason’, IF they show that the period for compliance originally imposed was unreasonable; although the period seemed reasonable at the time and could not realistically have been the subject of an appeal.

  4. NOT GOOD REASONS:

     • Mere overlooking a deadline, whether on account of overwork or otherwise is unlikely to be a good reason.

     • Solicitors may be under pressure and have too much work unlikely to be a ‘good reason’: solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for failure to meet deadlines. They should either delegate the work to others in their firm; or, if unable to do so, not take on the work at all.

  5. Applications for an extension of time made before time has expired will be looked upon more favourably, than applications for relief from sanction made after the event.

  6. If there is a very good reason for the failure then relief will usually be granted. The weaker the reason, the more likely court will refuse to grant relief.

  7. An application for a relief from a sanction presupposes that the sanction has in principle been properly imposed:

     • If a party wishes to contend that it was not appropriate to make the order in the first place that should be by way of:

       • (a) appeal or

       • (b) (exceptionally) by asking court to vary or revoke the order under r3.1(7).

  8. Asking court to vary/revoke order under r3.1(7), circumstances in which that can be exercised (Tibbles v SIG):

     • Need a principled curtailment of this discretion under 3.1(7), due to:

     • Considerations of finality;

     • the undesirability of allowing litigants two bites at the cherry;

     • the need to avoid undermining the concept of appeal

     • so discretion under 3.1(7) would normally be exercised only:

     • (i) where there had been a material change of circumstances since the order was made;

     • (ii) where the facts on which original decision was made had been misstated;

     • (iii) where there had been a manifest mistake on the part of the judge in formulating the order.

     • & the application must be made promptly

     • This reasoning has equal validity in the context of an application under r3.9.

  9. R3.14 [failure to file a budget] sanction = treated as having filed a budget comprising only court fees] sets out a stark and simple default sanction which will usually apply unless the breach in question is trivial, or there was good reason for it.

     • The grant of partial relief from that sanction will not often be appropriate.

     • If partial relief were encouraged that...