RELIEF FROM SANCTIONS REFUSED: DENTON MADE NO DIFFERENCE

November 3, 2014 · by · in Appeals, Avoiding negligence claims, Civil Procedure, Relief from sanctions

In Blemain Finance Ltd -v- Mukhtar &  Osman (28/10/14)* Globe J upheld a decision of the first instance judge refusing relief from sanctions.

THE FACTS

The claimant sought possession of the defendants’ home following a failure to pay. There was a defence and counter-claim. The claimant obtained an order for disclosure which the defendants fail to give. The defendants did not attend the trial. The defence and counter-claim were struck out. The judge subsequently refused an application from the defendants for relief from sanctions.

ON APPEAL

  • The judge had considered 3.9 fully.
  • The judge was entitled to fine that the defendants’ breaches were individually and cumulatively serious.
  • The judge had been entitled to find that there was no good reason for the default.
  • The two named factors in CPR 3.9 had been considered carefully by the judge but they were not the only factors and the judge had had full and appropriate regard to all the circumstances set out in CPR 3.9.

* This is based on the Lawtel report of that decision.

A WARNING SHOT AGAINST COMPLACENCY

One speaker at the recent Law Society Commercial Litigation conference  (I think it was David Marshall, I was following it on twitter) was reported as saying that complacency was the greatest danger in the post-Denton environment.  This is correct.

What Denton did was to get rid of the  point scoring and pedantic points on procedure which were becoming a major part of civil procedure in the aftermath of Mitchell. What Denton does not do is give any kind of green light to procedural default and defaulters.  Compliance should be every litigators watchword.

 

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