It’s been hard to detect a pattern or scheme behind the courts’ decisions on applications for relief from sanctions since the Court of Appeal reviewed the jurisdiction to grant relief in Denton v TH White Ltd
. That’s not surprising since the Denton
three-stage test brought general discretion to the fore, enabling judges to grant or refuse relief under CPR 3.9 at the discretion stage (stage 3), whatever the outcome at stage 1 (seriousness of the default) and stage 2 (reason for the default).
This makes it difficult for litigants and their lawyers to know whether their own application for relief from sanctions will succeed and also to know when to oppose an application for relief made by the other side. A rough and ready review of the available decisions during the last 18 months indicates that in about a quarter of the cases relief was granted at stage 3, even though the breach of the rules was serious and there was no good reason for it.
What is clear from the case law is that certain factors are likely to influence the outcome of an application for relief. Paying attention to these points will increase your chances of a successful application even where you cannot get through stages 1 and 2 unscathed, or enable you to save costs by opposing an application only when it is likely to be worthwhile doing so.
The parties can of course agree to extend time except where the court’s permission is required by the rules, for example where a hearing date would be affected (CPR 29.5). Where the rules impose a sanction for failure to comply with a time limit, parties can agree an extension of up to 28 days under CPR 3.8. Where there is no sanction, parties can agree in writing to vary time limits under CPR 2.11 where this is not prohibited by the CPR or a court order. Where agreement is not possible or forthcoming, an application for relief from sanctions becomes necessary.
Below are some tips, chosen with particular reference to those common situations where the need for relief results from a failure to meet a deadline for filing a statement of case, witness statement or costs budget.
Tips for the applicant
- Act quickly: Once it is clear that the other side is not going to agree to extend time, make the application as soon as you can. An application is made when it is filed with the court and not when it is date stamped or when the application is heard. If you make the application before the relevant deadline, you are applying for an extension of time and not relief from sanctions and that may help you (Hallam Estates Ltd v Baker).
- Don’t relax after issuing the application: It’s important to file and serve the relevant document as soon as you can so as to minimise prejudice to the other side and to show the court that you deserve relief. This is the case even if the relief hearing is several weeks away (Gill v Anami Holdings Ltd).
- Come clean and apologise: Don’t take technical points on timing or interpretation of the rules unless you are definitely right. Explain fully what has gone wrong and why. Wasting time arguing with the other side and then wasting court time at the hearing can lead to a failed application for relief even where the breach wasn’t serious (Lakhani v Mahmud where relief was refused even though the costs budget was only one day late).
- Don’t blame the other side: Going on the defensive and blaming the other side for your delay doesn’t work unless they’re really to blame. It can prejudice the judge against you.
- Blame the lawyer: There is conflicting guidance about the significance of the fact that the applicant is blameless and the fault lies solely with their lawyer. It is worth making the point if this is the case (Chiu v Waitrose) although more recently judges have disapproved of this approach (Gladwin v Bogescu). If the lawyer was ill, this is unlikely to be a good reason for the delay (Intellimedia Systems Ltd v Richards) but it can be (Antoniou v Georgallides).
- Access to justice: If the applicant is a litigant in person, this shouldn’t help them (Barton v Wright Hassall and Irvine v Slade) but in practice judges will be more sympathetic to an individual without a solicitor. This is likely to be the case where the trial date can stand and refusing relief, for example for late service of witness statements, will put an end to the claim (Gill v Anami Holdings Ltd). Stage 3 is about the justice of the case and where justice is in issue the court should not display judicial musculature by refusing relief (Newland Shipping and Forwarding Ltd v Toba Trading FZC).
- Costs: If you fail to follow the tips above, you may still get relief but your conduct could result in an adverse costs order, possibly on the indemnity basis (Intellimedia Systems Ltd v Richards).
Tips for the goody two-shoes
- Make sure your own house is in order: Any suggestion that delay has been caused by you helps the applicant. It is also best to attempt to co-operate with the other side before the application is heard, for example over agreeing budgets, to avoid the suggestion that you are seeking to benefit from the other side’s default.
- Don’t use the rules as a trip wire: Avoid tetchy correspondence that could give rise to a suggestion that you are seeking to take advantage of the applicant’s position by being excessively technical about the rules (McTear v Engelhard). This is particularly the case where the court has slipped up, for example by using an old form referring to the wrong deadline for costs budgets (Freeborn v Marcal).
- Don’t actively oppose the application in the absence of prejudice: Opposing the application without a real prospect of persuading the judge to refuse relief can result in an adverse costs order (Freeborn v Marcal). Placing too much emphasis on previous trivial breaches by the applicant may be also be counterproductive unless they have caused prejudice or wasted court time.
- Focus on loss of court time or hearing date: This is the vital factor in many of the cases. The judge has to consider the consequences of the breach for the court administration as a whole and not just for the parties (Falmouth House Ltd v Abou-Hamdan). Where the breach has had no effect on the timetable nor caused prejudice, relief may be granted even where the breach is serious (Mott v Long where the budget was 10 days late but a second hearing to deal with costs was always likely to be needed).
Tips for both sides
There is a serious shortage of judges. Court time is at a premium and parties who waste it cannot expect a sympathetic response from the judge. The range of acceptable outcomes in an application for relief from sanctions is much wider than you think and an appeal is almost certain to fail. It is therefore critical to get the judge on your side from the outset by setting out your case carefully in correspondence as soon as an extension of time is sought or the breach occurs, whether or not the breach is yours.
Anything that smacks of aggressive posturing on either side will be counterproductive whereas tenacious courtesy pays dividends. Being slow to issue an application and less than candid about the reason for the default, particularly if your story changes, is the road to failure, or at least to a disadvantageous costs outcome.