04 July, 2014
The judgement in three appeals regarding relief from sanction have been handed down this afternoon with some much needed guidance both for lawyers and the Courts on what will and will not be given relief from sanctions when a breach of the Civil procedure rules takes place.
The Master of the Rolls, Lord Justice Vos has suggested a three stage procedure;
The first stage replaces the question of whether a breach is "trivial", as stated in Mitchell, with the question of whether the breach is serious or significant. This would include whether the breach has any effect on the efficient running of litigation or has any effect on the Court timetable but could include such things as failing to pay Court fees. Although helpful this is still open to interpretation.
The second stage requires the Court to consider why the default occurred. The Court refers to some example given in the original Mitchell judgement. A Solicitor being taken ill would be considered good reason but over work or overlooking deadlines would not. Again as the Mitchell judgement does not give a definitive list there is room for interpretation but in short lax attitudes to cases should still not be tolerated.
The third and final stage requires the Court to apply CPR rule 3.9 (a) and (b), being that the Court should consider all the circumstances of the claim including (a) the requirements that litigation should be conducted efficiently and at proportionate costs and (b) the interests of justice in the particular case. Previously many defendants would have felt that paragraph (b) almost always led to the conclusion that a claimant would receive the relief they were requesting. However, the Court has specifically stated that these criteria should be given equal weight to the other consideration. Therefore significant or serious breaches with no good excuse may still lead to cases being struck out.
On the face of it this is a clear attempt to prevent the increasing satellite litigation going through the Courts on this issue. The impression given by the judgement is that Mitchell has caused confusion and the intention was never to slam the Court door shut irrespective of the details of the case. Relief from sanctions, it would seem, will now be more readily available but a return to the "lax culture of non-compliance" as stated in the judgment will still not be tolerated. Consideration should therefore still be given by defendants to taking issues of Claimant's non-compliance where appropriate.