#10372 - Sanctions - BPC Civil Litigation

SANCTIONS

• purposes

  1. ensure orders + directions complied with

  2. punish defaulting party

NON-COMPLIANCE

Non-compliance with pre-action protocols

• available sanctions:

  1. order stay

  2. order party at fault to pay costs proportionate to breach

  3. order party at fault to pay indemnity costs

  4. deprive C who is at fault of interest on damages / order interest at lower rate

  5. award D who is at fault higher rate of interest on damages payable to C (PD pre-action conduct para 4.6)

• parties must set out whether complied in claim form / particulars of claim (PD pre-action conduct para 9.7)

Non-compliance with CPR

• various e.g. can't use undisclosed expert report at trial

Non-compliance with directions

• agree new deadlines

  • if parties occasionally unable to keep to directions timetable, NOT usually problem, provided key dates kept (filing DQs, CMCs, PTRs, filing pre-trial checklists, trial) (r26.3(6A), r28.4, r29.5)

  • non-compliance through events beyond control / not deliberate

    • parties should co-operate and agree new timetable preserving key dates (r1.4(2)(a))

    • time specified by CPR / court for doing act can be varied by written agreement of parties (unless prohibited by rules) (r2.11)

• procedure on default

  1. innocent party should write letter to defaulting party:

  • asking for default to be remedied within reasonable period (7 / 14 days)

  • give warning of intention to apply for order if NOT remedied

if continued non-compliance

1. apply without delay for order to enforce compliance and / or sanction

2. court decides whether to make order compliance / sanctions (court may take any delay into account in deciding)

PRESERVATION OF TRIAL DATE

• following apply on CMCs, applications to extend time + applications for relief from sanctions:

  1. court will NOT allow failure to comply with directions, due to circumstances within parties' control lead to postponement of trial unless circumstances of case exceptional

  2. if practicable, court will enable case to come for trial on date / period set:

     1. assess steps party should take to prepare for trial

     2. direct steps taken in shortest possible time

     3. impose sanction for non-compliance

  3. if 1+ issues are / can be made ready for trial at time set, court may direct that trial proceed on those issues AND order no costs for later trial of remaining issues / costs to be paid by party in default

  4. if court has to postpone will for shortest possible time + will give directions to take steps in meantime as rapidly as possible

  5. postponement = order of last resort - court may require party + legal rep to attend hearing where postponement sought

AVAILABLE SANCTIONS

• how to apply?

  • hearings where court decides whether to impose sanctions arise in several ways:

    • on notice application for sanctions

    • application by defaulting party to extend time for compliance

    • CMC

    • pre-trial reviews

    • trial

• levels of seriousness of default

1. minor breach - allow defaulter time to comply + adverse costs order on any interim application

2. serious breach - final order (state revised deadline is final, bearing proportionality in mind) + adverse costs order

   • breach of final order sanction on further application to court

3. more serious breach - if satisfied appropriate, unless order with stated sanction in default + adverse costs order

4. very serious breach - immediate sanction (may restrict evidence, value of claim, strike out)

Unless orders

• often used for persistent default

• if breached, other party may file request for judgment + costs (r3.5)

• drafting unless orders

  • usual 'Unless C serves list of documents by 10 July 2014, his claim will be struck out and judgment entered for D'

  • if defaulting party did not attend hearing where order made 'Unless C serves list of documents within 14 days, his claim will be struck out and judgment entered for D'

• test on expiry

  • has there been complete compliance (unless non-compliance de minimis)?

• material non-compliance

  • sanction takes immediate effect (unless defaulting party applies for + obtains relief from it) (r3.8, PD 3A para 1.9)

  • extensions CANNOT be agreed between parties (r3.8(3))

  • procedure for obtaining judgment on orders providing SoC will be struck out

    1. situation 1:

       1. party in default is C; +

       2. order strikes out whole particulars

       3. D may enter judgment with costs by filing request stating right to enter judgment arisen because court order not complied with (r3.5(2)(a), (3))

    2. situation 2:

       1. party in default is D; +

       2. order strikes out whole defence; +

       3. claim limited to specified sum, damages +/or delivery of goods with alternative of paying value

       4. C may enter judgment with costs by filing request stating right to enter judgment arisen because court order not complied with (r3.5(2)(b), (3))

    3. situation 3:

       1. neither (a) or (b) applies e.g. part of SoC struck out / D in default + C claims equitable relief

       2. party seeking to enter judgment must make an application in accordance with part 23 i.e. issue application notice for hearing (r3.5(4))

Strike out

• whole SoC

  • rare, reserved for most serious / repeated breaches, otherwise = disproportionate

  • disproportionate strike out deprives C of right of access to court (offends Art 6)

  • delay: only warrants strike out if impossible to have fair trial by using other sanctions

• part of SoC

  • = immediate sanction suitable for less serious breaches (r3.4)

Less serious immediate sanctions

• order defaulting party to pay costs fortwith

• debar defaulting party from adducing evidence in particular form / from particular witnesses

• deprive winning defaulting party of interest on money claim

• increase defaulting party's interest

EXTENDING TIME

• court has general power to

  • extend time (r3.1(2)(a))

    • on own initiative, even re: unless order (r3.1(1)(a), 3.3)

    • application to extend time

      • party who is / will be in default + has not been able to agree extension with other side may apply (r3.1)

      • court applies OO + main consideration = will delay cause prejudice to other side?

  • abridge time (r3.1(2)(a))

CORRECTING DEFECTIVE PERFORMANCE

• general rules:

  • procedural errors do NOT invalidate step purportedly taken (unless court orders) (r3.10)

  • court may remedy error of procedure (r3.10(b)) + defaulting party should seek order if innocent party objects to defective procedure

• significant defects where court may invalidate step:

  • other side misled

  • action taken does NOT constitute purported performance

RELIEF FROM SANCTIONS + SETTING ASIDE

• the two mechanisms to retrieve position after imposition of sanctions

1. if judgment entered for...