RELIEF FROM SANCTIONS GRANTED WHERE MONEY PAID 17 HOURS LATE:”A SENSE OF PERSPECTIVE IS NECESSARY”

In Khandanpour v Chambers [2019] EWCA Civ 570 the Court of Appeal allowed an appeal in relation to a refusal to give relief from sanctions.  A delay in payment of 17 hours of part of the moneys ordered by the court  was not “serious or significant”.

“Ultimately, a sense of perspective is necessary. For the delay of a few hours which made no practical difference whatever, it would be disproportionate and unjust to deprive the appellant of an opportunity to challenge the Default Costs Certificate”.

THE APPEAL

The defendant in a case sought to set aside a default costs certificate.  The certificate was set aside, conditional upon the defendant paying £10,000 to the claimant’s solicitors by a certain date  The money was paid, however £4,000 was paid before the deadline and £6,000 the day afterwards.  There was an issue as to whether the claimant’s solicitors were entitled to appropriate the late payment towards the Legal Aid Charge.  The Court of Appeal held that the claimant knew that the purported appropriation was contrary to the defendant’s obvious intention in making the payment.

THE JUDGMENT ON RELIEF FROM SANCTIONS

    1. As I have already said, the judge indicated that he would have had little hesitation in granting relief from sanctions if he had concluded that the only non-compliance was the delay overnight in making part of the payment required by the order of 17 May 2017.
    2. I agree with the judge’s view about that. I can therefore deal relatively briefly with the application of the Denton principles.
    3. As to the seriousness of the breach, the delay was minor and had no effect at all on the conduct of the litigation or in any other way. It was a delay overnight of (at most) 17 hours.
    4. Mr Denman submitted that the appellant’s failure to pay on time was serious having regard to his previous conduct, including his failure to pay the judgment debt for a protracted period. However, while that is a factor which may be relevant at stage three, in considering the seriousness of the breach the court must focus on the breach itself. As the majority (Lord Dyson MR and Vos LJ) explained in Denton:

“27. The assessment of the seriousness or significance of the breach should not, initially at least, involve a consideration of other unrelated failures that may have occurred in the past. At the first stage, the court should concentrate on an assessment of the seriousness and significance of the very breach in respect of which relief from sanctions is sought. We accept that the court may wish to take into account, as one of the relevant circumstances of the case, the defaulter’s previous conduct in the litigation (for example, if the breach is the latest in a series of failures to comply with orders concerning, say, the service of witness statements). We consider that this is better done at the third stage (see [36] below) rather than as part of the assessment of seriousness or significance of the breach.”

    1. This approach was qualified in British Gas Trading Ltd v Oak Cash & Carry Ltd [2016] EWCA Civ 153[2016] 1 WLR 4530. Where the breach consists of failure to comply with an unless order which was itself made as a result of a failure to comply with one or more previous orders, the assessment of seriousness should take account of the previous failure(s) as well as the failure to comply with the unless order itself.
    2. As Jackson LJ explained:

“38. An ‘unless’ order, however, does not stand on its own. The court usually only makes an ‘unless’ order against a party which is already in breach. The ‘unless’ order gives that party additional time for compliance with the original obligation and specifies an automatic sanction in default of compliance. It is not possible to look at an ‘unless’ order in isolation. A party who fails to comply with an ‘unless’ order is normally in breach of an original order as well as the ‘unless’ order.

39. In order to assess the seriousness and significance of a breach of an ‘unless’ order, it is necessary also to look at the underlying breach. The court must look at what X failed to do in the first place, when assessing X’s failure to take advantage of the second chance which he was given.”

  1. The order made by DDJ Eyley was not an unless order of this kind. We do not have a transcript of any judgment, but even if the payment condition was imposed in the light of the appellant’s long-standing failure to pay the judgment debt and a history of leaving things until the last minute, he was not in breach of any previous order as to costs. It was not, therefore, a case such as described by Jackson LJ where, having been in breach of previous orders for payment on account of costs, the appellant was now being given a final chance. At stage one, therefore, this was a minor breach, not one which was serious or significant.
  2. It appears that instructions for payment had been given which ought to have enabled payment to be made on time, even if they had been left until the last minute. There was clear evidence that the appellant himself had been in hospital on the due date and was therefore unable to attend to the matter personally. That would suggest that relief from sanctions could well have been given as a result of applying stages one and two of the Denton principles, the seriousness and significance of the breach and the reason why it occurred, without needing to go on to stage three.
  3. However, even if it was necessary to go on to consider all the circumstances of the case at stage three, and accepting that the application for relief was not made as promptly as it might have been, I would still be prepared to grant relief from sanctions. Even assuming that the appellant’s conduct of the litigation was open to criticism and that he had sought to obstruct enforcement of the judgment, by the time with which we are concerned the respondent had obtained charging orders over the appellant’s properties which would enable the judgment to be enforced, albeit with some further expense and delay. Further, refusal of relief from sanctions would mean that the Default Costs Certificate in the sum of £27,824.40 would stand unchallenged which, on the face of it, seems like a high figure having regard to the value of the claim. It may be that this sum or something like it can be justified and that the costs were unnecessarily increased by the appellant’s conduct of the litigation, but that is what the process of detailed assessment is intended to determine.
  4. Ultimately, a sense of perspective is necessary. For the delay of a few hours which made no practical difference whatever, it would be disproportionate and unjust to deprive the appellant of an opportunity to challenge the Default Costs Certificate.