RELIEF FROM SANCTIONS, PRISONS AND SANITATION

The issue of relief from sanctions was considered by Mr Justice Hickinbottom in Ashton (et al) -v- The Ministry of Justice [2014] EWHC 1624 QB.

THE FACTS

A large number of prisoners were bringing actions  under the European Convention alleging that the state of the sanitation was a breach of their rights under Article 8.

A trial was held on two lead cases and the prisoners’ claims dismissed. Permission to appeal was refused by the Court of Appeal.

The judge then made a series of case management directions.

“12.I gave directions requiring any remaining claimant who wished to continue with his claim to give notice of intention to proceed by 30 June 2013. That Order made clear that, if notice were not given by that date, then the claim would be struck out with costs, automatically and without further order. 109 Claimants gave such notice. The rest of the claims were automatically struck out.

13. On 7 August 2013, I made a further Order in relation to the 109 claims, requiring each claimant who had given notice to set out his claim (if he had not already done so) and to identify how his claim was distinguishable from Grant & Gleaves; with a direction again that, if a claimant did not comply, his claim would be automatically struck out with costs. Of the 109 claims, 80 claimants either did not respond at all or responded merely to confirm that they did not now wish to proceed or responded with no indication why they considered their claim materially different from the lead cases; and, in accordance with the 7 August Order, those claims too were automatically struck out.

14. In respect of the remaining 29 claims, I ordered that, if they were not already in the High Court of Justice (Queen’s Bench Division) at the Royal Courts of Justice, they should be transferred there so that they could be case managed efficiently. However, I considered that, in 17 of those claims, the claimant who had purported to distinguish his claim from Grant & Gleaves had not arguably done so. Their claims too were struck out in accordance with my earlier Order. In the Order, I added this:

“If any of those Claimants wish to be reinstated, then they must make a formal application to the court to do so; and that application will be heard at a hearing, which will be by way of videolink in the case of a Claimant who is still a serving prisoner.””

THE APPLICATIONS FOR REINSTATEMENT:  A TWO STAGE TEST

Several prisoners were struck out for failing to comply with these provisions. The judge found that there was a two-fold step. Firstly whether a claimant had a reasonable prospect of success; secondly whether relief from sanctions should be granted.

“The Law

  1. In respect of relief from sanction, CPR Rule 3.9 provides:

“(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 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 a proportionate cost; and

(b) to enforce compliance with rules practice directions and orders.

(2) An application for relief must be supported by evidence.”

  1. Those provisions were recently considered by the Court of Appeal in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537, which held that, unless the imposition of the order transgressed is challenged by way of appeal (and, as I have said, no such challenge is made in any of these cases) or the applicant can show he was not in fact in default, the starting point is that the sanction was properly imposed and complies with the overriding objective. If the default is trivial, and there is a good reason for it, then relief should usually be granted. But simply overlooking a deadline is unlikely to be not a good reason. That case concerned a sanction imposed in default of filing a cost budget, but the approach of the Court of Appeal is of general application to defaults in respect of orders of the court.

20.Therefore, in considering these applications for relief from sanctions, I must consider, first, whether (even if he had been in time) the particular Claimant would have been permitted to continue with his claim because that claim is distinguishable from Grant & Gleaves and has a reasonable prospect of success. If not, then that is the end of the matter: the application for relief must fail. If the Claimant does satisfy me as to those matters, I must consider whether, in the light of Mitchell, I should exercise my discretion to grant relief and allow the claim to proceed.”

APPLICATION FOR RELIEF NOT GRANTED

In each of the five cases the judge refused the applications.  None of the case had a reasonable prospect of success.

(The case is notable for one exchange.  Some of the prisoners gave evidence by video link from prison.

Furthermore, during today’s hearing, when Mr Jaffey was making fairly modest submissions in response, the Claimant left the videoroom, suggesting in blunt terms that he thought the claim was a waste of time. Mr Jaffey submitted that this suggested that the Claimant was never committed to seeing any claim through to trial. I agree.

Not a clue, however, as to what the “blunt terms” were.)

POINTS OF GENERAL IMPORTANCE

Where a court makes case management directions and a party is in default there may well be a two-fold test for reinstatement.

1. Does the applicant come within the criteria envisaged in the original case management directions?

2. If so should the court grant relief from sanctions?

It would seem sensible to deal with point 1 first. There is no point in considering relief from sanctions if a litigant does not come within the relevant criteria in any event.