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Jackson in Action - case law

In our regular monthly round up of cases we look at the effects of the changes to the Civil Procedure Rules under the Jackson Reforms and in particular the impact on relief from sanction applications as a result of changes to CPR r.3.9.

Relief from sanctions/failure to file costs budget: In Bari & Ors v Alternative Finance Ltd & Anor (2014) relief from sanctions was granted where a costs budget was filed one day late, but the penalty would be to pay the costs thrown away on an indemnity costs. Sitting in the Chancery Court, Deputy Master Matthews held that, although the claimant's solicitors had approached the costs budget in a "cavalier fashion", the breach was towards the trivial end of the spectrum.

Relief from sanctions/failure to file costs budget: In Azure East Midlands Ltd v Manchester Airport Group Property Developments Ltd (2014) relief from sanctions was granted in the Technology Company & Commercial Court by Judge David Grant where a costs budget was filed 2 days late. The breach was trivial, when properly analysed and having regard to all the circumstances of the case.

Relief from sanctions/application to rely upon witness evidence: In Monde Petroleum SA v Westernzagros Ltd (2014) Justice Hamblen granted relief from the sanction of requiring the court's permission to rely on a witness statement that had been served three months late was granted where there had been a good reason for the breach. The claimant had sought to save costs by delaying the provision of the statement, which was largely clarificatory, pending the outcome of parallel arbitration proceedings, which then reduced the volume of evidence required. 

Relief from sanctions/relief from sanctions regime: In Mid-East Sales Ltd v Islamic Republic of Pakistan & Anor (2014) relief from sanctions was sought in respect of a default judgment and an order granting leave to serve proceedings out of the jurisdiction. Justice Burton held that the test in Mitchell applied to the later but not the former. CPR r.13.3 governed applications to set aside a default judgment and the Defendant had an arguable defence.

The following are cases which did not concern application of CPR r.3.9 but where the court had regard to the robust test now being applied under that rule:

Relief from sanctions regime/failure to file comply with Group Litigation Order: In Holloway & Ors v Transform Medical Group (CS) Ltd & Ors (2014) the High Court refused to join 17 litigants to the register of claims in a group litigation order concerning defective implants used in breast augmentation surgery. Their solicitors had failed, without good reason, to comply with the cut-off date imposed by the court for any new claims to be added to the GLO. 

Relief from sanctions regime/extension of time to challenge rejection of proof of debt: In The Matter Of Lehman Brothers International (Europe) (In Administration) Sub Nom Contrarian Funds Llc v Lomas & Ors (2014) Justice David Richards sitting in the Chancery Division refused to grant a company a further extension of time to challenge the rejection by a company of its proof of debt, a court and held that administrators had been generous in the extensions of time which they had previously agreed.

Relief from sanctions regime/test in Mitchell did not apply: In Brett v Colchester Hospital University NHS Foundation Trust (2014) Master O’Hare of the SCCO held that the guidance in Mitchell does not apply to cases where a party sought relief from a default judgment or default costs certificate. The default judgment rules were differently worded: they required the court to ask whether, despite a failure to comply with a procedural step, there was a good reason for the case continuing. That difference in wording was relevant as the failure to serve on time, ordinarily only impacted upon the parties.

The following case dealt with the court’s approach to a reasonable request for an extension of time, made before the time to comply expired. The court concluded that CPR r.3.9 and the test in Mitchell did not apply:

Reasonable requests for extensions of time/overriding objective: In Hallam Estates Ltd & Anor v Baker (2014) the Court of Appeal held that parties and their representatives would be furthering the overriding objective and saving costs by agreeing reasonable requests to extend time where such a request neither imperilled future hearing dates nor otherwise disrupted the conduct of the litigation. The courts should not refuse to grant reasonable extensions of time in such circumstances. To read Simon Denyer’s analysis of the case on In Touch click here

By Marcus Davies

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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