21 February, 2013
Filed UnderLegal Costs
Relief from sanctions applications are currently governed by CPR 3.9:
"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol;
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely trial date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party."
This is to be changed from 1 April 2013 to a newly worded CPR 3.9:
"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders."
I interpret this as being a significant change in emphasis. Previously the courts have tended to approach applications for relief from sanctions as being about achieving an outcome that it ultimately “fair” regardless of the delay and cost this brings to the litigation. The new test appears to be one firmly refocused on robust case management with justice being achieved through stricter enforcement of court orders and rules thereby bringing swifter resolution to the dispute and in a more cost effective manner.
If that interpretation is correct, it means case law previously governing applications for relief from sanctions will become largely redundant.
Applications for relief from sanctions in costs matters tend to arise where there has been a failure to notify of additional liabilities during the course of a claim or a failure to serve the appropriate documents in support of additional liabilities when commencing detailed assessment proceedings.
Again, the transitional provisions are worth reviewing:
“The amendments made by … these Rules do not apply to applications made before 1 April 2013 for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order.”
Therefore the new stricter test applies depending on when the application for relief from sanctions is made, not the date of the breach.
Where there is, for example, a failure to give proper notification in May 2010 but an application for relief from sanctions is not made until May 2013 it will be the new test that applies.