Many of us will remember well listening to conference speakers prior to the implementation of the Jackson reforms who, understandably, were preaching doom and gloom to the profession. A topic that regularly came up for discussion was what was described as a new ‘zero-tolerance’ approach to compliance with Rules, Practice Directions and Court Orders.
When the anticipated Court of Appeal decision in Mitchell hit the law reports it appeared that the warnings of those conference speakers had been prophetic. What ensued, in our experience, was a barrage of ‘Application warfare’ with litigants flagging up every transgression of their opponents to try and force an application for relief from sanction, where the Courts were more likely than not to refuse relief.
Many of us (including District Judges) breathed a sigh of relief when the decision in Denton was published. In our experience many local Courts adopted a complete shift in position and relief from sanction was regularly given to parties who promptly admitted their sins and sought forgiveness.
So where are we now?
There is still much uncertainty and the attitude of Judges varies from Court to Court. However, several recent decisions suggest that the Courts are generally adopting a more merciful approach to applications for relief. One of the key ingredients for a successful application is that of promptness and all practitioners would do well to keep that in mind when making an application for relief from sanction. If you are looking for some helpful case law on the issue of relief from sanction we suggest that you take a look at the following:
Murray -v-BAE Systems PLC (Liverpool County Court, 1st April 2016) – helpful article by Gordon Exall, Barrister – https://civillitigationbrief.wordpress.com/2016/04/01/costs-budget-served-late-relief-from-sanctions-allowed-on-appeal/
(Relief granted for a 7 day delay in filing a costs budget)
Mishcon De Reya v Antonio Caliendo (1) Barnaby Holdings LLC (2) [2015] EWCA Civ 1029
http://www.bailii.org/ew/cases/EWCA/Civ/2015/1029.html
(Relief granted for delay in serving Notice of Funding)
Priestley v Dunbar and Co (a firm) [2015] EWHC 987 (Ch) (30 April 2015)
http://www.bailii.org/ew/cases/EWHC/Ch/2015/987.html
(Permission to set Judgment aside even though Application had not been made promptly – Denton guidance considered)
Although the above are all examples of cases where relief from sanction was granted by the Court, practitioners should be aware that there are many other cases where because of a ‘serious or significant’ breach of a Rule, Practice Direction or Order, a failure to give a good reason for the breach or having regards to the circumstances of the claim, the Courts have refused to grant relief.
In our view the recent developments in relief from sanction case law demonstrate that parties should foster greater co-operation and should refrain from contesting applications for relief where it is clear that the defaulting party’s non-compliance is neither serious nor significant. It is clear that the Courts now take a dim view of opportunism and are likely to punish such an attitude with an adverse costs Order. With all said and done, the best option is to make sure that you comply with Rules, Practice Directions and Court Orders and save yourself a lot of stress!
Forestcosting 
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