LAKATAMIA SHIPPING -v- NOBU SU: A TRIVIAL BREACH CONSIDERED
Relief from sanctions was granted by Hamblen J in the case of Lakatamia Shipping -v- Nobu Su  EWHC 275 (Comm). A full blog post on the case will will follow. For the time being I will note his conclusion. The full transcript is availabile on Bailli
(1) The nature of the non-compliance and whether it can be characterised as trivial
- The Defendants’ disclosure was 46 minutes late although it could have been made only around 15 minutes late if the Claimant had agreed to exchange. It is a delay measured in minutes not hours. It can be said that the Defendants “narrowly missed the deadline” – a circumstance which the Court of Appeal in Mitchell expressly contemplated as being de minimis and usually deserving of relief from sanctions at :
“…the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example…where the party has narrowly missed the deadline imposed, but has otherwise complied with the order”
- That the non-compliance is also trivial is also borne out by its effect. It has caused no prejudice to the Claimant, and none is suggested.
- The Claimant submits that the non-compliance cannot be characterised as trivial in the light of the history of earlier defaults by the Defendants. However, what matters is whether the non-compliance which resulted in the sanction is trivial and in my judgment that involves a consideration of the default in question, not other defaults at other times. The history of default may be a relevant general circumstance to take into account but it does not affect the characterisation of the relevant non-compliance or metamorphose a trivial default into a serious default.
A TRIVIAL BREACH
- In my judgment the non-compliance in this case was trivial. A deadline was just missed for reasons which were explicable, if not excusable. It is the type of case in which relief will “usually” be granted in accordance with the guidance provided in the Mitchell case. Having regard to all the circumstances and in the exercise of my discretion I am satisfied that this is a case in which relief should be granted.”