The commercial court will not encourage time wasting procedural applications. Leggatt J summarised the principles that should be applied on an application for relief from sanctions: ‘i) On an application for relief from a sanction under CPR 3.9, it is usually appropriate to start by considering the nature of the non-compliance. If the non-compliance can be regarded as trivial or insignificant, the court will usually grant relief provided that an application is made promptly.
ii) If the non-compliance cannot be so regarded, the court should consider why it occurred and will still be likely to grant relief if there is a good reason for it.
iii) Good reasons are likely to arise from circumstances outside the control of the party in default; by contrast, inefficiency or incompetence of a party’s solicitors – for example, where a deadline is simply overlooked – is unlikely to amount to a good reason.
iv) Where the non-compliance is not trivial and there is no good reason for it, the court is still required by CPR 3.9 to consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’
However, relief should not usually be granted in such cases because the circumstances which should generally be given greatest weight are the two factors specifically mentioned in the rules.’
. . And ‘There remains, of course, the further consideration of the need to enforce compliance with rules, practice directions and court orders which, even on its own, must clearly be given substantial weight. But, as the Master of the Rolls emphasised in his lecture on the Jackson reforms in words approved by the Court of Appeal in Mitchell at [38], it is not the aim of the reforms to turn rules and rule compliance into ‘trip wires’, nor into ‘the mistress rather than the handmaid of justice’, nor to render compliance ‘an end in itself’. It seems to me that this would be precisely the result of refusing relief in a situation where, as here, there has been non-compliance with a rule or order but the objective which the insistence on compliance seeks to serve of ensuring that litigation is conducted efficiently and at proportionate cost has not been impaired.’
Leggatt J
[2014] EWHC 398 (Comm), [2014] WLR(D) 104
Bailii, WLRD
Civil Procedure Rules 3.9
England and Wales
Citing:
Cited – Mitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .
Cited by:
Cited – Rattan v UBS Ag, London Branch ComC 12-Mar-2014
rattan_ubsComC0314
The claimant had sought an order limiting the defendant’s costs after alleged non-compliance with directions, and failing to file a costs budget.
Held: The application was rejected. The Commercial Court will firmly discourage the taking of . .
Cited – Kaneria v Kaneria and Others ChD 15-Apr-2014
The parties were embroiled in a company dispute with allegations of conduct prejudicial to minority shareholders. An application was now made for sanctions for a failure to comply with court directions.
Held: Unless and until a higher Court . .
Applied – Americhem Europe Ltd v Rakem Ltd TCC 13-Jun-2014
americhem_rakemTCC0614
Complaint was made that a costs estimate had been signed not by a solicitor, but by a costs draftsman.
Held: The rules required the estimate to have been signed by a ‘senior legal representative’. A costs draftsman whose involvement in the . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 30 November 2021; Ref: scu.521586
