Focus on Relief from Sanctions
Following the judgment in the case of Denton v TH White  EWCA Civ 906, guidance was given by the Court of Appeal in relation to relief from sanctions.
The hard line taken in Mitchell v Newsgroup Newspapers Ltd  EWCA Civ 1537 was watered down into a new test which can be briefly summarised as the three stage test below:
1. Was the breach serious or significant?
2. Was there good reason for the breach?
3. Considering all the facts of the case, is it just to allow relief?
The Court of Appeal in Denton maintained that the guidance given in Mitchell remained "substantially sound".
Since then, many cases have been reported in relation to applications for relief.
This week, there has been the case of Mott v Long  EWHC 2130 (TCC) in which the Defendant was 10 days late in filing a Costs Budget. The Defendant blamed unspecified IT issues for the delay but provided no evidence of such issues.
The judge considered that the breach was "serious or significant" and that the lack of any detail provided with regard to the IT issues led him to doubt that there were any such issues. The Defendant therefore failed on stages 1 and 2 but relief was allowed under stage 3 as the judge considered that the Defendant would have had to revise their Costs Budget in any event due to case management decisions taken earlier in the CMC process.
Given that Denton states that greater weight should be given to stages 1 and 2, it seems to be a fairly generous decision to me.
Another recent decision is in the case of Rotronic Instruments (UK) Ltd v A One Distribution (UK) Ltd  EWHC 1833 (TCC) where the Defendant failed to file and serve either an acknowledgement or a Defence to the claim. The Defendant, over three months later, made an application for relief from sanctions and an extension of time for filing their Defence.
The judge considered that the breach was serious or significant and that there was no good reason for the breach. However, the Defendant was allowed relief on the basis that their conduct had no material impact upon the proceedings as the Particulars of Claim had been revised and no costs had been incurred as a result of their conduct.
What I found interesting about this case was that the judge described relief from sanctions in a case where it was concluded that the Defendant had failed stages 1 and 2 was "relatively rare". I wondered whether this was borne out in recent case law, so I decided to have a look through the cases that have been heard this year and on a quick trawl through Bailii, I noted the following applications where stages 1 and 2 were failed yet relief was granted:
Mott v Long  EWHC 2130 (TCC)
Rotronic Instruments (UK) Ltd v A One Distribution (UK) Ltd  EWHC 1833 (TCC)
Newland Shipping and Forwarding Ltd v Mr Ahmed Sakr Mohammed Salem Al Qassimi  EWHC 1416 (Comm)
And the following where relief from sanctions was denied:
Gladwin v Bogescu  EWHC 1287 (QB)
Redbourn Group Limited v Fairgate Development Ltd  EWHC 1223 (TCC)
Kimathi and Ors v The Foreign and Commonwealth Office  EWHC 939 (QBD)
Michael and Ors v Phillips and Ors  EWHC 142 (QB)
Elbrook Cash and Carry Ltd v The Commissioners for Her Majesty's Revenue and Customs  UKFTT 143 (TC)
Couper and Ors v Albion Properties Ltd and Ors  EWHC 22 (Ch)
It seems that it remains difficult to obtain relief from sanctions where the breach is "serious or significant" and the Court considers that there was no good reason for the breach, though not impossible as the recent cases highlighted above show.
Of course, the best approach remains to be vigilant on compliance with Court Orders and Directions to avoid being in the position where relief is required in the first place!
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