RELIEF FROM SANCTIONS AND CPR 3.9: TWO CASES WHERE RELIEF FROM SANCTIONS WAS GRANTED
The issues caused by the new CPR 3.9 have featured many times on this blog. Here we look at two High Court decisions where relief from sanctions was granted. Kesabo –v- African Barrick Gold Plc and (because the full transcript is now available) Wyche –v- Careforce Group Plc.
Kesabo –v- African Barrick Gold Mine Plc  EWHC 3198 (QB)
Kesabo was a case where the claim form had to be served by midnight on the 29th July 2013. The claim form was served on the 26th July but the particulars of claim were hand delivered to the defendant’s solicitors 16 hours after midnight on the 29th July 2013. The case was a claim by numerous claimants who entered a mine and who were allegedly shot at or assaulted by police or security staff. Liability was denied.
THE FIRST ISSUE: WERE THE PARTICULARS OF CLAIM SERVED IN TIME?
Simon J rejected the claimant’s argument that CPR 6.14 (which provides deeming provisions for the date of service of the claim form) in some way extended time for service. The rules provide that the particulars of claim must be served within the initial four month period of service and the particulars of claim were served late. Relief from sanctions was needed.
SECOND ISSUE: RELIEF FROM SANCTIONS ON THE BASIS OF WHOLLY INADEQUATE PARTICULARS
The Particulars of Claim that were served were deficient on a large number of grounds. The judge stated:
“In the light of these egregious deficiencies in pleading there can be no question of granting relief against sanctions in relation to the currently framed particulars of claim.”
RELIEF AGAINST SANCTIONS: CPR 3.9 CONSIDERED
The judge was very surprised that, given the inadequate particulars, no further draft had been provided. However the claimants’ solicitor had taken extensive steps to obtain further evidence. The judge considered the “post-Jackson” cases and summarised the general approach to CPR 3.9:
“I doubt whether, in the usual case, the new words of CPR 3.9 require any further elaboration or refinement. However, some of the criteria in the old version of the rule may be relevant to the exercise of the Court’s discretion, although they should plainly not be applied in a formulaic way:”
THE FACTORS TO BE CONSIDERED
1. It may be necessary to form an overall view of the merits when considering the issue of proportionality. However the difficulty in forming a comprehensive view of the merits at the early stage of the litigation militated against giving weight to this factor either way.
2. Although the application was apparently for a short time of 16 hours the reality was that the claimant needed a much longer time given that the particulars were “inadequate, inchoate and unhelpful.”
3.The claimant’s solicitor was at fault in not knowing the time limit for service of the particulars of claim.
4. The judge rejected any criticism of the defendant’s solicitors.
5.CCTV evidence obtained by the claimants and an expert report did not progress the case.
6. The claimants had put themselves at a disadvantage in not having an appropriately pleaded draft particulars of claim.
7.On the other hand:
(i) it was likely that if the claimant had applied, timeously, for an extension of time it would have been granted.;
(ii) the application for relief was made reasonably promptly;
(iii) the breach was not intentional;
(iv) there had been no previous infraction of the rules;
(v) there was a cogent explanation as to what had happened.
8. The fault was of the claimants’ solicitors and not his clients. There had been considerable difficulties in taking instructions from, and communicating with their clients, who lived in a remote part of Tanzania.
9. If the relief was sought the claims would have to be brought under a different and less advantageous costs regime and new claims would be subject to a jurisdictional challenge. However only one of the claims would be time barred and the need to issue new proceedings would result in some delay in a case where the recollection of witnesses could be crucial.
The judge considered the overriding objective and 3.9. He concluded:
“Notwithstanding some hesitation about this issue, I have concluded that the balance comes down in favour of granting the relief sought, so as to enable the Claimants within a short period to serve particulars of claim in this case. The pleading should address the points contained in this judgment and the additional criticisms of the current way of putting the case made by the Defendants in the course of argument. Accordingly I grant the Claimants’ application in the terms of §(b)(ii). The extension will be for a short period from the handing down of the judgment: a matter of days rather than weeks.”
RELIEF FROM SANCTIONS WAS GRANTED!
This was a highly unusual case. It highlights a number of matters:-
1. The common mistake that is made about service of particulars.
The particulars of claim must be served within the four month period of service.
2. The fact that extensions of time will be extremely short, if granted at all.
The claimant wanted 14 days it was granted for a “matter of days”.
CAN WE DRAW ANY LESSONS UNDER CPR 3.9?
It is unwise, at present, to attempt to extract any wider principles as to CPR 3.9. Any prudent litigator will wait until after this matter is considered by the Court of Appeal on the 7th November.
See the discussion of the forthcoming appeal in http://civillitigationbrief.wordpress.com/2013/10/30/extensions-of-time-when-there-is-a-minor-breach-full-transcript-in-rayyan-al-iraq-co-ltd-now-available/
THE FULL TRANSCRIPT IN WYCHE –V- CAREFORCE
Wyche –v- Careforce  EWHC 3282 was a decision on the 25th July 2013; however the full transcript has only just become available. It was discussed at http://civillitigationbrief.wordpress.com/2013/07/29/relief-from-sanctions-a-case-in-which-relief-was-granted-wych-v-careforce-group-ltd/
WYCHE – A RE-CAP
In Wyche the defendant had breached a peremptory order for disclosure. The breach was admitted. The defendant made an application for relief from sanction. The claimant sought a declaration that the defence was struck out because of the breach.
THE NATURE OF THE BREACH
The order made was an e-disclosure order. The defendant had failed to carry out a keyword search. Miscategorised some documents as privileged. The mistakes had been noted and the documents disclosed prior to the hearing but after the date for compliance under the peremptory order.
HOW RELEVANT IS THE FACT THAT THE MISTAKE WAS INADVERTENT?
Walker J stated:-
“24. I cannot accept that whether a mistake was inadvertent or deliberate is irrelevant. True, the effect may be the same, but I am concerned with the question of whether there should be relief. The mere fact that a mistake was inadvertent cannot in any sense be a trump card. Nonetheless, it will, in most cases at least, be a relevant consideration. Certainly, and Mr Casement accepted this, where a particular failure is deliberate, then that will weigh strongly against the party in default, absent something exceptional.”
HOW RELEVANT ARE STEPS TAKEN TO REMEDY THE ERROR?
The judge rejected the argument that steps taken after the breach was discovered could not be considered in the exercise of his discretion.
“I am not persuaded that the steps taken when the mistake was identified are irrelevant to materiality. I consider that the materiality of the breach is a matter which I should look at in the round. In this case it is not suggested that Careforce were actually aware of the breach any earlier than April this year, when the matter was raised with Careforce by those acting for Mr Wyche. The response on the part of Careforce was immediate and prompt. That can not, in my view, be completely irrelevant to the questions which arise.”
DOES HUMAN ERROR BAR AN APPLICATION FOR RELIEF FROM SANCTIONS?
The judge further rejected an argument that human error by those carrying out the search meant there was a bar to relief from sanctions.
“33. In my view this comment, if it is intended to say that human error can never be a ground for relief, takes matters to an unacceptable extreme. I have no hesitation in accepting what is said by Jackson LJ in the Fred Perry case. He was concerned there to make it absolutely clear, and he did make it absolutely clear, that a culture of delay and non-compliance is unacceptable. He did not say that the Court will never make any allowance for human error.
34. I would add this. The court is not a martinet. It does not blindly insist that every “I” be dotted and every “t” be crossed. Thus it is that the court will not ordinarily punish immaterial breaches. Moreover, even where there is a material breach, the court’s role is not automatic. It does not apply the rules unthinkingly, nor does it expect that human beings, who must carry its orders into effect, will act as automatons.”
AN ARGUMENT THAT THE TRIAL DATE WOULD HAVE TO BE VACATED
The judge dealt very robustly with an argument that the trial date would have to be vacated as a result of the defendant’s errors.
“43.The seventh point is that if the Court were to grant the relief sought by Careforce the trial date would have to be vacated and when it was refixed, in order to deal with all the problems about disclosure, an extra day would be needed at the trial.
44. It seems to me that the shape of this case was such that preparations for trial could and should have continued after the receipt of Ms Bains’s witness statement. That made it clear that the error was unintentional. It was plain that the error that she had made had not involved any failure at all to provide Mr Wyche’s team with a document they should have been provided with. True, they had had to look at many more documents than might otherwise have been the case, but what is clear is that they were able to assimilate the new material.
45.I am not prepared to proceed upon the basis that the trial date would have had to be vacated as a result of what happened. It seems to me that the decision taken to seek to seize upon the fact that an “unless” order had been made may be a decision which has made it more difficult to get the case ready for trial.”
RELIEF FROM SANCTIONS GRANTED
The judge granted relief from sanctions. He found that there had been material failures they were not deliberate and were mistakes made against the background of rigorous attempts being taken to comply.
“61.In my view, while these two failures were material in the sense that they were more than trivial, they were unintentional and minor failings in the course of diligently seeking to comply with paragraph 2 of Burton J.s order. Taking account of all the factors noted above, the circumstances merit relief from the sanction envisaged by that order. Recognition of this does not in any way countenance a culture of delay or non-compliance. The culture which the court seeks to foster is a culture in which both sides take a common sense and practical approach, minimising interlocutory disputes and working in an orderly and mutually efficient manner towards the date fixed for trial. It would be the antithesis of that culture if substantial amounts of time and money are wasted on preparation for and conduct of satellite litigation about the consequences of truly minor failings when diligently seeking to comply with an “unless” order.”
It is worthwhile repeating an extract from the final part of that judgment.
“The culture which the court seeks to foster is a culture in which both sides take a common sense and practical approach, minimising interlocutory disputes and working in an orderly and mutually efficient manner towards the date fixed for trial. It would be the antithesis of that culture if substantial amounts of time and money are wasted on preparation for and conduct of satellite litigation about the consequences of truly minor failings when diligently seeking to comply with an “unless” order.”
This sets out the main dilemma for the courts. The need to balance the need for court orders to be complied with the desirability of avoiding satellite litigation on peripheral procedural issues. Any party, faced the possibility that relief from sanctions will not be granted, may well be fully justified in opposing the application. We have seen several reported cases where relatively minor delays, which cause no prejudice to the other party, have led to actions being struck out.
This is one of the difficult issues the Court of Appeal will need to consider on the 7th November. The conclusions reached could determine the nature of litigation for a considerable time.
- An example of a claimant serving particulars late and not obtaining relief is discussed at http://civillitigationbrief.wordpress.com/2013/07/01/service-faults-and-the-match-is-over/ This post also sets out in detail the rules for serving the particulars within the four month period.
- The Wyche case was discussed, briefly, at http://civillitigationbrief.wordpress.com/2013/07/29/relief-from-sanctions-a-case-in-which-relief-was-granted-wych-v-careforce-group-ltd/
Similar comments about taking procedural points set out at http://civillitigationbrief.wordpress.com/2013/08/28/extension-of-time-granted-defendants-objection-regrettable/
Discussions of relief from sanction applications can be found at: