Relief from Sanctions – a year on from Mitchell

Following the decision in the Mitchell case, there was a feeling that from now on, cases were going to be routinely denied relief from sanctions for the most minor of errors. As the following cases below show, although the Courts have become stricter, relief from sanctions is achievable.

The Court makes a distinction between ‘in time’ applications and ‘out of time’ applications.

In Kaneria v Kaneria [2014] EWHC 1165 (Ch) it was held that the decision and guidelines in Mitchell did not apply to an ‘in time’ application for an extension of time. This was to be decided by reference to the overriding objective.

In applying the overriding objective, the court considered the need to enforce ‘compliance with rules, practice directions and orders’. However, unlike in the case of relief from sanctions, the consideration did not have a preferential status and was to be used as an aid.

This means that the Court would look at an ‘in time’ application as an application for extension of time and not a relief from sanctions application.

In the judgment, in Michael and Another v Middleton and another  [2013] EWHC 2881 (Ch), when dealing with an ‘out of time’ application, Judge David Cooke provided useful guidance for parties who wish to conduct litigation and gave an indication of what the courts would be likely consider when faced with applications for relief from sanctions.

‘the overall justice of the application and the two specific factors mentioned in the rule in terms of conducting the litigation efficiently and saving costs and enforcing compliance with the orders of the court …’

In this case, Judge Cooke, did not allow relief from sanctions as he felt that he was being asked to reinstate a claim and impose a new timetable.

In Wyche v Careforce Group Plc QBD (Comm), unrep. 25 July 2013, Judge Walker in allowing relief from sanctions, held that an unintentional failure to comply with an unless order caused by human error was not irrelevant under Rule 3.9, however the error was not a trump card and significantly the Defendant had corrected the mistake when it was initially recognized. More importantly, the Trial scheduled for October 2013 would have still been possible.  

In a more recent case, Wain v Gloucestershire County Council & ors [2014] EWHC 1274 (TCC), The Judge held that although the Fourth Defendant had filed her costs budget six days before the costs management hearing as opposed to the requisite seven, the breach was trivial and the Claimant had suffered no prejudice. As the parties were able to deal with costs management at the hearing and, unlike in Mitchell, there had been no disruption caused to the court’s timetable the Judge ordered, that the sanction for failing to file a cost budget should not apply.

It would seem that where the failure to comply with timescales, will be granted relief from sanctions as long as the timetable of the case is met and the error is ratified quickly.

However, this is not always the case and applicants should be mindful that they may need to show a material change in circumstances in order to obtain the relief from sanctions.

This is evidenced in the case of Thevarajah and another v Riordan and others Ch D unrep 9 August 2013.  In this case, the judge refused the Defendants’ application for relief from sanctions in relation to the non-compliance regarding disclosure that was the subject of an unless order. The Judge stated that the checklist of considerations under the old Rule 3.9 could still be considered when determining whether to grant relief from sanctions. The Judge also noted that under the new rule, the Court should be less inclined to grant relief and that where there was non-compliance with an unless order, the applicant ought to show a material change in circumstances.

This view was confirmed in the case of Rayyan Al Iraq Co Ltd v Trans Victory Marine Ltd QBD (Comm) unrep 23 August 2013. The Judge stated that as in Thevarjah, the checklist of considerations under the old Rule 3.9 could still be used when determining whether to grant relief from Sanctions. The Judge went further and indicated that the change in the rule and in judicial attitudes did not mean that relief should be refused where that would be a disproportionate response.  

In this case, the delay had not impeded the administration of justice and the application for relief had been made promptly. The Judge also indicated that the Respondents’ attempt to exploit an inconsequential error was said to be regrettable.

Although the Court is taking a hard line in relation to relief from sanctions, there seems to be some reprieve. However, it must be remembered that a flagrant disregard for Court orders will almost certainly be met with the application for relief from sanctions being denied, as per the case of Biffa Waste Services v Dinler (Unreported, QBD, 10 October 2013).

In this case, the Judge upheld an appeal by the Defendant against a grant of relief from sanctions made by the Claimant. The Judge concluded that as the Claimant had failed to comply with directions which had been made on an unless order basis, there had been a blatant disregard of the Court Order which occasioned a delay of the trial. The Judge held that the relief should have been refused and as such the Claimant’s claim was struck out.

However, in Chartwell Estate Agents v Fergies Properties [2014] EWCA Civ 506, the Judge found that relief from sanctions should be granted. This was despite the Claimant’s non trivial non compliance and the fact that no good reason had been advanced to explain said non compliance.

In this case, the Judge considered all the circumstances of the case, which included the fact that the trial date would not be effected nor would there be any significant increase in cost if relief was granted. The Judge also considered that by refusing to grant relief, the action would also be ended.

The Court of Appeal upheld the Judge’s decision that relief from sanctions should be granted. The explanation for the departure from the judgment in Mitchell, was that the background history to the claim entitled the Judge to depart from the usual expectation that relief of sanctions would be refused. The Court of Appeal also indicated that the decision in Mitchell had not meant that the factors specified in Rule 3.9 would always override any other circumstances. 

So a year on from Mitchell, the Court have given further guidance as to when they will and will not grant relief from sanctions. Although there have been some inconsistencies, most Judges are taking a tougher line.

If an application for relief from sanctions must be made, firstly do it as soon as possible. Ideally while still ‘in time’. This means it would not be treated as a relief from sanctions application. If this cannot be achieved, apply as soon as possible and indicate to the Court that you have done so. Make a point of addressing the factors under the old rules as these may still be taken into consideration and ensure that the issue of timetabling has been raised. Finally, raise any material changes that have occurred in support of the application and ensure that the Judge has a full background of the claim available.