ANATOMY OF A POST-DENTON RELIEF FROM SANCTIONS APPLICATION 1: THE DEATH OF THE WORD "TRIVIAL"
There are now plenty of places that summarise and give views on the effect of the Court of Appeal decision in Denton -v- White. Here I want to start on the task of looking, in some detail, at the practical impact of that judgment on applications for relief from sanctions. The first point to note is that the term “trivial” is no longer relevant.
The first stage of an application for relief from sanctions is to “identify and assess the seriousness or significance of the “failure to comply with any rule, practice direction or court order”. In Denton the Court of Appeal considered the use of the word trivial.
- “Triviality” is not part of the test described in the rule.
- It is a useful concenpt in the context of the first stage because it requires the judge to focus on the quesiton wehther a breach is serious or significant.
THE END OF THE USE OF THE WORD “TRIVIAL”: INSTEAD NOW FOCUS ON WHETHER THE BREACH IS “SERIOUS OR SIGNIFICANT”
The Court felt that the use of the word “trivial” in Mitchell had led to semantic disputes which were not helpful.
“In these circumstances, we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant.”
WHAT IS SERIOUS OR SIGNIFICANT?
The Court of Appeal were happy to adopt the Law Society and Bar Council test that the test of triviality should be replaced by one of materiality. An immaterial breach is one which:
“neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation.”
However the Court made it clear that this should be understood as including the effect on litigation generally, not only the litigation in which the application is made.
- In many cases materiality in this sense will be the most useful measure of whether a breach has been serious or significant.
- However this leaves out of account those breaches which are incapable of affecting efficient progress of the litigation, even though they are serious, for instance a failure to pay court fees.”
- The Court, therefore, preferred to say that “in evaluating a breach, judges should assess its serious and significance”.
NOT HARD-EDGED CONCEPTS
The Court recognised that these were not hard-edged concepts, there are degrees of seriousness and significance. However with the guidance in the Denton decision and its application in individual cases over time a consistency of approach should emerge.
EARLIER BREACHES NOT TAKEN INTO ACCOUNT (AT THIS STAGE)
The assessment of the seriousness of the breach should not in the initial stage involve a consideration of earlier unrelated failures which may have occurred in the past.
- At the first stage the judge should concentrate upon an assessment of the seriousness of the very breach in respect of which relief from sanctions is sought.
- If the judge wants to take account the relevance of the conduct this should be done at the third stage, rather than as as part of the assessment of the seriousness or significance of the breach.
IF THE BREACH IS NOT SERIOUS OR SIGNIFICANT RELIEF FROM SANCTIONS WILL USUALLY BE GRANTED
If the judge comes to the conclusion that the breach is not serious or significant then relief from sanctions will usually be granted. It will usually be unnecessary to spend much time on the second or third stages.
However if the court decides that the breach is serious or significant then the second and third stages assume greater importance.
1. The word “trivial” is no longer in use in relation to an application for relief from sanctions.
2. The test is whether the breach is “serious or significant”.
3. The court looks at the impact of the breach upon the litigation, and litigation generally.
4. Earlier breaches are not taken into account at this stage.
5. If the breach is not serious or significant then relief from sanctions will usually be granted.
ONE OPEN QUESTION: DOES THE FACT THAT AN APPLICATION FOR RELIEF FROM SANCTIONS HAS TO BE MADE MEAN THAT THERE HAS BEEN A “SERIOUS OR SIGNIFICANT” IMPACT ON THE LITIGATION SYSTEM?
This is an argument that has been made in the past. The very fact that a party has to make an application for relief from sanctions means that the court system is disrupted. It featured, for instance, in the Romano case heard in the days immediately after the Mitchell decision. In that case the fact that an application was needed was held to be a factor in refusing relief. Further, in Mitchell itself, the Master commented that time had been taken up by the need for an application for relief from sanctions.
This issue was considered at paragraph 64 of the Denton. In the Decadent Vapours case there had been a failure to pay a court fee on time. The Court of Appeal held that there was no good reason for this. However:
“It only affected the orderly conduct of the litigation because or the approach adopted by the defendants and the court.”
So the time taken up by an application for relief from sanctions may not, in itself, represent a breach of the “orderly conduct of litigation”.