Relief from Sanction

Following my appearance recently in the Manchester High Court in the Mercantile Division, it is worthwhile noting HHJ Bird’s judgment regarding an application by the Defendants for relief from sanction under CPR 3.9.  There has been a great deal of coverage of cases since the amendments to the civil procedure rules in 2013.  The cases of Mitchell and Denton continue to dominate as authorities.

The particular facts of this case were that the Defendants had failed to file and serve its witness evidence in accordance with the case management directions three months earlier.  This followed some earlier minor breaches of the directions.  Prior to the substantive breach, the Defendants were in a dialogue with the Claimant’s solicitors regarding the provision of the disclosure.  There was a convoluted discussion over a number of weeks regarding each Defendant providing a written undertaking for photocopying the requested disclosure.  The Claimant finally provided the disclosure the day before the expiry of the deadline for service of witness evidence.

Five days after the deadline, the Claimant wrote to the Defendants and informed them they were in breach and would now be barred from relying on any witness evidence on the claim or counterclaim.  The Defendants were litigants in person and wrote to the Claimant seeking an extension for service, but this was refused.  Five days later, they made an application for relief from sanction.

HHJ Bird applied the three stage from Denton.  It was clear that the Defendants were in part the authors of their own misfortune by missing a series of deadlines by a small but important margin.  They had not made any application for an extension before the expiration of the deadline and it was not made very promptly post-expiry.  

However, equally he was less than impressed with the conduct of the Claimant.  It turned out that the reason for the delays in service of the disclosure was an absolute requirement by the Claimant for each of the Defendants to sign an undertaking for payment of the reasonable photocopying costs.  These amounted to approximately £23 + VAT.  The Judge remarked this equated to less than six minutes of billable time by the solicitor acting for the Claimant.  He also recognised that it was unrealistic for the Claimant to have expected the Defendants to have filed and served their witness evidence by the deadline and that as they were unrepresented, could have prompted an extension application.

The application was granted with an unless order and costs sanction for the Defendants.  The matter is listed for trial in 2016.

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Lawyer, High Court - Marcus Croskell