RELIEF FROM SANCTIONS GRANTED SECOND TIME AROUND: QUITE A TWIST TO THIS TALE?
The case of Thevarajah –v-Riordan has been reported before at http://civillitigationbrief.wordpress.com/2013/08/13/relief-from-sanctions-a-case-where-relief-was-refused/ when the court refused to grant relief from sanctions where the defendant had failed to comply with disclosure obligations. However the case is now reported (on Lawtel) a second time. The defendant made a second application for relief and it was granted.
A previous application for relief from sanctions had been refused. A second application was made on the grounds that the breaches of the unless orders had been granted and the failings in disclosure were partly the fault of the previous solicitors.
THE CENTRAL FINDINGS OF THE COURT
Judge Andrew Sutcliffe QC (Ch D 10/10/2013) found:
- Although the case was decided under the new CPR 3.9 the matters in the old CPR 3.9 remained relevant.
- Relief would not always be refused if this was disproportionate.
- The new rules had been brought in to counter the culture of deliberate gain, but the principle was justice between the parties and minor errors could not be exploited for tactical gain.
- The court had to consider all the circumstances.
- The defendant had been justified in relying upon their former solicitors who had, wrongly, informed the defendant that they had complied with the unless order.
- If there had been a breach of the unless order it was de minimis.
- The fact that the defendant had now complied with disclosure obligations which were significant and wide ranging and there was no evidence that they had wilfully not complied amounted to a material change in circumstances.
- The defendants were entitled to make a second application under CPR 3.9.
- The striking out of a defence did not prevent a defendant from participating at trial. There was a difference between striking out a defence and entering judgment.
- It was appropriate to give relief from sanctions.
COMPARE AND CONTRAST
This case compares, markedly, with the case of Michael –v- Middleton  EWHC 2881 (Ch) which is discussed at http://civillitigationbrief.wordpress.com/2013/10/09/another-failed-application-for-relief-from-sanctions-more-lessons-to-learn/ where the application to reinstate failed even though the previous solicitor was found to be at fault for the breaches. There are problems with drawing comparisons from brief reports of cases, however there are a number of significant factors that stand out:
- In Thevarajah the breach had been corrected prior to the hearing.
- Compare this to Michael where the breaches had not been remedied and there was not clear timetable or plan for compliance at the date of the hearing.
It may be a matter of concern that there could be a distinction between the striking out of a defendant and the striking out of a claimant. If the claim is struck out then this is the end of the matter. If the defendant is in default the defendant can still participate at trial. It is an important element of rules of procedure that they are even handed. If a defendant can be struck out, apply for reinstatement twice, and be told they could have participated in the trial in any event, there is a danger of the rules becoming lop-sided.
- The discussion of the original decision in Thevarajah is at http://civillitigationbrief.wordpress.com/2013/08/13/relief-from-sanctions-a-case-where-relief-was-refused
- The Michael decision is discussed at http://civillitigationbrief.wordpress.com/2013/10/09/another-failed-application-for-relief-from-sanctions-more-lessons-to-learn/
- On the issue of the key date for implementation of the new CPR 3.9 seehttp://civillitigationbrief.wordpress.com/2013/08/19/relief-from-sanctions-the-key-date-for-implementation-of-the-new-cpr-3-9/
Discussions of relief from sanction applications can also be found at: