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Relief from Sanctions needs Relief from Confusion

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Whilst reading the recent case of Forstater & Anor v Python (Monty) Pictures & Anor [2013] EWHC 3759 (Ch), one could be forgiven for a touch of confusion especially in view of the widely reported and commented upon Mitchell ruling of 27th November 2013.

In Forstater a High Court judge has granted relief from sanctions in relation to a failure to serve notice of funding as per form N251. Summarily, when the second claimant was joined to the first claimant’s conditional fee agreement, it failed to complete and serve form N251. The defendants were later made aware of the CFA within correspondence.

On the face of it, under CPR 44.3B, this would render a party unable to recover any part of its success fee unless the court ordered otherwise.

It was explained that the failure to serve the N251 was a “simple oversight” and that there was “no good explanation” for the error. One would expect in those circumstances that the previous ruling given in Supperstone v Hurst [2008] EWHC 735 would follow, namely that relief should not be granted lightly and that if a party does not have a good explanation, “relief from sanctions will usually be refused”.

Interestingly, Mr Justice Norris made clear that he had taken account of the Mitchell ruling yet decided that his own (draft) decision did not need to be revised despite Mitchell. It was found that when the defendant had been informed of the CFA, “the policy embodied in CPR 44.3B had been fulfilled”.

Whilst this decision may appear to be a triumph for common sense, to a certain extent it flies in the face of the Court of Appeal’s comments set down in Mitchell insofar as the Court’s approach that is to be taken to Relief from Sanctions going forward.

Watch this space…..
 

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