RELIEF FROM SANCTIONS REQUIRED WHEN RESPONDENT’S NOTICE SERVED LATE: DENTON CONSIDERED

In Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB) Mr Justice Dingemans considered the issue of relief from sanctions when a Respondent’s Notice was served late. It is a useful reminder of the importance of serving a respondent’s notice and of the function that the notice serves.

THE CASE

The appellant was appealing an order that the respondent notice was not bound to give her six months notice to determine the tenancy of a flat.  The respondent landlord did not file any respondent’s notice.  The respondent argued that it was not necessary for it to serve a notice.

A RESPONDENT’S NOTICE

The case serves as a timely reminder as to why and when a respondent’s notice is necessary.   This set out in CPR 52.13.

“Respondent’s notice

52.13
(1) A respondent may file and serve a respondent’s notice.
(2) A respondent who—
(a) is seeking permission to appeal from the appeal court; or
(b) wishes to ask the appeal court to uphold the decision of the lower court for reasons different from or additional to those given by the lower court,
must file a respondent’s notice.”

NOTE THE WORD “MUST”

It is clear that this requirement is mandatory. In this case the respondent was seeking to rely on other grounds for upholding the order, however it had not served a respondent’s notice.

THE JUDGMENT IN BAMBER – RELIEF FROM SANCTIONS REQUIRED (AND GRANTED).

The judge held that the respondent should have served a respondent’s notice and that relief from sanctions was required.

“Issue 1 – permission to serve a notice to affirm out of time
  1. Mr Strelitz sought an extension of time to serve the Respondent’s Notice to affirm from 13 May to 28 June 2018 if it was necessary to do so. I am satisfied that it is necessary for Mr Strelitz to serve a Respondent’s Notice to affirm to rely on the point that Ms Bamber was left only with a statutory periodic tenancy after service of the notice in August 2017 meaning that it was not a fixed term tenancy within the meaning of section 21(1A)(a). This is because the Judge rejected this submission in paragraph 17 of the judgment. It is no answer to submit that Livewest had succeeded in getting a declaration that the notice was valid. The point of a Respondent’s Notice to affirm is that the Respondent identifies another basis for supporting the order made by the Judge which is additional to the Judge’s reasoning. This appears from CPR Part 52.13(2)(b) which provides that a notice to affirm is served to rely on “reasons different from or additional to those given by the lower Court”. The notice should have been served 14 days after service of the Appellant’s notice on 25 April 2018 which is 13 May 2018. The hearing was listed on 17 May 2018, and the Respondent’s Skeleton Argument was filed on 27 June 2018, which was a day before the hearing before me on 28 June 2018.
  2. It is common ground that the proper approach to the issue of whether to grant an extension of time to permit service of the Respondent’s notice out of time is set out in Denton v TH White Ltd [2014] EWCA Civ 906[2014] 1 WLR 3926 which identifies the need to consider: whether the breach of the rule was serious and significant; whether there was good reason for the breach; and all the circumstances of the case having regard to the need to conduct proceedings efficiently, at proportionate cost, and to ensure compliance with the rules.
  3. In my judgment this was a significant breach of the rules by Livewest. This was because there was a failure to serve a Respondent’s notice to affirm at any time before the hearing. There was no good reason for the breach, which appeared to have been caused by a misunderstanding of the purposes of a Respondent’s notice to affirm. However the relevant circumstances included the facts that: the point had been identified below and had been the subject of submissions below; the point was a point of law and did not require any further investigation; the point was properly identified in a Respondent’s Skeleton Argument, which there was no formal need to serve in accordance with the current rules relating to appeals from the County Court to the High Court; and Ms Bamber’s legal representatives were able to deal fairly with the point. In the light of these relevant circumstances I exercised my discretion to permit the Respondent’s notice to affirm to be served out of time. As discussed at the hearing the costs consequences of the failure to serve the notice to affirm should be borne by the Respondent.”