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The Supreme Court consider applications for relief from sanction for the first time post Mitchell

Thevarajah v Riordan
Supreme Court
16 December 2015

This case became famous as the relief from sanctions saga moved through the key judgments from the Court of Appeal, firstly in Mitchell v NGN in November 2013, and then onto Denton v T H White in July 2014. We now have the judgment of the Supreme Court, which is the first time post-Mitchell that the highest appellate court has considered a case in this area.

In Thevarajah, the decision of the Court of Appeal which from January 2014 was seen to be following the harsher approach to default then recognised as appropriate from the Mitchell decision, and it overturned the judgment of a deputy High Court judge granting relief. The Court of Appeal in Thevarajah criticised the deputy judge for lacking the robustness called for by the judgment in Mitchell.

The issue concerned the failure by a litigant to fully comply with an unless order, following which Mr Justice Hildyard sitting in the High Court debarred the defaulting party from defending the claim, and at the same time refused relief from sanctions. Two months later and on the eve of trial, the defaulting party was permitted by the deputy judge to make a second application for relief from sanctions, which was then granted. It was this judgment which was later overturned by the Court of Appeal.

Perhaps surprisingly, the Supreme Court granted permission to appeal the judgment of the Court of Appeal, but if that raised the hopes of the defaulting party which was pursuing the appeal, then they were dashed when they saw its judgment. Lord Neuberger, the President of the Court, giving judgment, said he had initially wondered whether simply to say that he agreed with the judgment of the Court of Appeal.

In the judgment in fact given, Lord Neuberger said that Hildyard J’s reasoning on the initial application for relief was consistent with the guidance later given by the Court of Appeal in Mitchell and in Denton. Lord Neuberger did not comment directly on the approach taken by the deputy judge hearing the second application as the Court of Appeal had done, but dealt with the appeal instead by saying that the second application should not have succeeded without a material change in circumstances, where there had been none.

As far as Mitchell and Denton are concerned, Lord Neuberger referred to Denton having “clarified some of the reasoning in Mitchell”, much as the Court of Appeal would themselves have said. But he also noted in the judgment that “Quite rightly there has been no suggestion that we should reconsider what was said in those judgments.

One way of looking at the Supreme Court’s judgment therefore is to recognise that while the Court of Appeal had refused relief on the basis of the tougher Mitchell test then in force, the fact that test had been altered by the Denton case made no difference on the facts of this case. Relief should have been refused post Denton just as following the Court of Appeal’s judgment it should have been after Mitchell.

Those who were interested in seeing whether the Supreme Court would have anything to say which might have been relevant on how Denton should be applied in practice will have been disappointed. The conventional wisdom has been accepted, that procedural issues like this remain the responsibility of the Court of Appeal.

We are now nearly 18 months on from Denton, and interest in issues of default have quietened down. We now know that the Supreme Court will not be adding to the debate. The law in relation to relief from sanctions therefore remains undisturbed, in other words it remains business as usual.


For more information please contact Simon Denyer, Partner on +44 (0)161 604 1551 or email simon.denyer@dwf.co.uk

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.