SANCTIONS CASES: SUMMARY OF ARGUMENTS THIS MORNING
Here is a very brief summary of the arguments considered by the Court of Appeal in the cases on sanctions this morning. A useful summary is also being provided by @JohnHyde1982 on twitter.
Lord Justices Jackson, Dyson and Voss are hearing three consecutive relief from sanctions appeals over two days. The cases are: Denton & others v T H White, Decadent Vapours Limited v Beaven and Utilise v Davis.
Should the judge have allowed the claimant to adduce six new witness statements and vacated trial date?
No, it was not a trivial breach, orders for exchange were made back in 2011 and no excuse or good reason for the delay. The judge did not apply Mitchell or applied it incorrectly.
Claimants accept the breach wasn’t trivial but further evidence only came to light at a late stage and this provides a good reason for relief being granted. The judge had a discretion and was entitled to conclude that the trial would be artificial without further evidence.
Claimant’s argument is that breach of late payment of court fees was trivial. It was instructing solicitor’s fault that it was one day late (which is trivial). The further delay was due to the courts and or fault in the DX which was out of the parties control )as mentioned in Mitchell) and relief should be given.
Dyson indicated that he thought the breach was trivial.
Jackson disagreed and said that failing to pay court fees is not trivial and is important but that the breach was not material, i.e. it did not affect the proceedings continuing.
Comments on Mitchell
Defendant in Denton – not must to add to Bar Council and Law Society submissions (not yet heard).
But from first hand knowledge is causing problems –
Solicitors are focusing on procedure as opposed to evidence.
Vapours Case Discussion
Discussed whether “material” is a better word than “trivial”.
Counsel highlighted there was always a problem when lawyers come up with words which end up being tests.
Dyson said that one of the devils stated to have been unleashed was lots of satellite litigation but that this wouldn’t always be the case.
He also stated that it is not necessarily in a position to consider merits of a case and effect on substantive case of breach so has to fundamentally be concerned with procedural merits.
Jackson also highlighted that CPR Rule 3.9 was a three limbed test which includes dealing with cases justly and looking at all the circumstances