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Relief from Sanctions – mixed messages

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All the way through the run to ‘Jackson Day’ it was expected that in the new era there would be a tough approach by the Judiciary on the subject of allowing relief from sanctions to parties who fail to comply with the requirements of the Civil Procedure R

From a Law Costs Draftsman’s point of view this was especially relevant to new world of costs management and costs budgeting, for example, with huge penalties to be levied against a party who failed to file a costs budget in time as required by the CPR (with any inter-partes costs recovery being limited to court fees only).

There have been some recent decisions however on the issue of relief from sanctions that on the face of it appear to temper this new robust approach.

In Wyche v Careforce Group PLC (unreported, QBD, 25 July 2013), the defendant was subject to an ‘unless order’ in relation to e-disclosure. The defendant’s compliance was inadequate in relation to the search terms used and the miscategorisation of certain documents as privileged. The errors were rectified once they were drawn to the defendant’s attention. The claimant applied to strike out the defence on the basis of the non-compliance and the defendant sought relief from sanctions under new CPR 3.9. Mr Justice Walker granted relief, reportedly ruling that the court could make allowance for human error and that whether it was inadvertent or deliberate was a relevant – but not determining – factor. Here the errors had been inadvertent, they had been speedily remedied, and they had not affected the scheduled trial date.

The issue of relief was further clouded in the case of Rayyan Al Iraq Co Ltd v Trans Victory Marine Inc. In this case it was ruled that the new rule on relief from sanctions should not be applied so strictly that a refusal would be disproportionate and give the defendants an unjustified windfall. The claimant’s solicitors had served particulars of claim shortly after the expiry of the 28-day period allowed by the CPR. Having missed the deadline, the claimant in Rayyan asked the defendant to agree to the necessary extension of time. That request was refused and the Claimant applied to the court. It was found that had the claimant applied for an extension before the 28-day period expired, it would almost certainly have been dealt with on paper and granted.

Notwithstanding the new focus on compliance with the rues, the change in the rules and the approach (we were told) that the court adopts, does not apparently mean that relief should be refused as a matter of course and, as evidenced in the 2 case mentioned here, where that would be a disproportionate response.

In view of these cases it seems that attempts to ‘exploit’ the new stricter approach to relief may not be worthwhile.
 

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