RELIEF FROM SANCTIONS: WHAT DOES “TRIVIAL” ACTUALLY MEAN? A LOOK AT THE CASES
If you attend one of the, numerous, “Jackson” and “Mitchell” conferences that abound at the moment you can easily make the lecturer sweat. Ask them to define “trivial”. Whether a breach is “trivial” or not is crucial to the way that the court approaches the issue of relief from sanctions. Here we look at the cases on this issue. (I will refer anyone who asks me the question to this post).
CAN WE FIND PRINCIPLES OR GUIDELINES TO FOLLOW?
At this stage I am not attempting to assess whether there are any decided principles or guidelines we can follow. This is not easily done in any event. Some of the decisions contradict each other. All I can do at present is set out the relevant decisions. (If anyone knows of any decisions that could usefully be included let me know and I will add them to this post).
“TRIVIAL” WHAT THE COURT OF APPEAL SAID IN MITCHELL
In Mitchell the Court of Appeal stated.
“It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. The principle “de minimis non curat lex” (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms.”
LOOKING AT THE CASES
The claimant failed to file their costs budget at least seven days before the case management and costs budget hearing. They actually filed their costs budget on the day before the hearing.
Filing the costs budget 7 days late was not trivial
The delay led to an abortive cost budgeting hearing and an adjournment which had serious consequences for other litigants.
ROMANO –V- K PAPERS (BLACKBURN) LTD (2013) Manchester CC, 29th November 2013. (Unreported, except on this Blog)
Romano was an industrial deafness case issued in January 2012. A defence was filed and, to allow the parties to consider settlement, the court made an order staying the action until the 21st February 2013. In the meantime the firm acting on behalf of the claimant went into administration. The solicitors acting for the administrator wrote to the court and the court extended the stay until the 17th June 2012 with the order concluding “at which time and date the claimant’s claim will stand struck out automatically.”
The claimant solicitors had a change of staff. The new solicitor read the order on the 18th June 2013 and made an application for relief from sanctions on that day.
Delaying an application to the court to lift a stay by one day was not trivial
The Mitchell decision did not mean that ‘near misses’ would be overlooked in all cases. If the narrow miss had consequences which involved using the resources of the court this was a different matter. In the current case the default had led to the need for a hearing that would not have been necessary.
This was a High Court case listed for seven days. On the first day of the trial the defendant’s counsel indicated that it would be necessary to amend the Defence and introduce a supplementary witness statement (seven months late).
The failure to file the witness statement was not a trivial breach
The court found the defendant’s breach was far from trivial. The late service of a witness statement amounted to a serious departure from the court order. The new witness statement was not a mere formality but an attempt to introduce a wholly new and inconsistent material to the case.
The claimants lost at trial and at the Court of Appeal. However the action was compromised following permission to appeal being granted to the Supreme Court. The defendant agreed to pay the claimant’s costs; these were in excess of £2.5 million. The claimant served a notice of funding in relation to the initial hearing but did not serve any notices in relation to the appeals to the High Court and Court of Appeal.
The failure to provide notice of funding was not trivial.
It was held that the rules required the claimants to give notice of the change in funding arrangements and they did not do so in any form.
The court ordered the second defendant to pay some of the costs of the first defendant. The second defendant did nothing within the 14 days allowed by the rules to apply to set aside the order. Further they did not comply with the order. Some six weeks outside the time allowed the second defendant applied to set aside the order.
The second defendant’s six week delay in applying to set aside an order was not trivial and relief was not granted.
HMRC applied and was granted permission to appeal from a decision relating to input tax. The rules required a Notice of Appeal to be supplied in one month of permission being granted. The notice had to be supplied by the 6th May. It was in fact supplied on the 1st July 2013, 56 days late.
The 56 day delay in providing the notice of appeal was not trivial or minor.
The service of the notice of appeal was an important part of the appeal process without which further progress is impossible.
This case concerned two applications, one for a stay under CPR Part 11 and the other for judgment in default of defence. The court held that CPR 3.9 was not applicable but did consider the issue of whether the defendant’s application for a stay was made late and the implications of this.
THE OUTCOME (HAD 3.9 BEEN APPLICABLE):
It is highly likely that the delay of one day in making the application would be classed as trivial.
It was stated that “In the present case the challenge was days late, and on one view, only one day late. Although S.E.T relief upon Mitchell in support of its contention that the time limit should be applied dispute the slight infraction, in my view that authority supports the opposite conclusion. At  the court expressly refers to the situation where a party has narrowly missed a deadline as one in which the court will usually grant relief. Where there is a genuine dispute as to jurisdiction, one would normally expect an extension to be agreed.”
The claimant failed to provide a bond of security, due on 4.00 pm on the 5th December until 10.00 am on the 6th December.
The delay of one day (18 hours to be exact) to provide security was a trivial breach
The delay was not material. It had no impact on any other aspect of the conduct of the litigation. (The judge was also very critical that the ‘Mitchell’ point had been taken by the defendant in the first place.)
CANNING –V- NETWORK RAIL (2014) Mitchell J (11/4/2014) (unreported, discussed here )
The claimant was a widower claiming damages following the death of his wife. He applied for permission to put in an additional witness statement to show that his wife would have been involved in his business. This was extremely late.
The breach was not a trivial breach.
It was made extremely late and it changed the basis of the way the action was pleaded.
The claimant failed to file her costs budgets in time (it was 45 minutes late) and failed to inform the court if further directions were needed in breach of a court order.
Although the failure to file the costs budget was trivial it was one breach in a history of non compliance. Two or more trivial breaches can be viewed as a whole and will not be trivial.
The claimant failed to comply with a peremptory order for disclosure.
Failure to comply with the peremptory order was not trivial.
The breach caused prejudice to the opposing party and was not trivial in accordance with Mitchell.
COOK –V- DANTER  (unreported)
The claimant failed to file an updated schedule of loss or inform the court that she intended to rely on the original schedule.
The failure to inform the court of the decision to rely on the original schedule was trivial.
There was no prejudice to the defendants and striking out the claim for failing to confirm the original schedule was a disproportionate sanction having regard to the breach.
The claimant failed to inform the court or the defendant that their expert had retired despite knowing this when case management directions were made. They only informed the defendant 3 months before the trial.
The failure to inform the court and defendant of the need to instruct a new expert late in the day was not trivial.
The defendant failed to give disclosure in accordance with a court order and the commercial court guide (which says the latest time for compliance is 4.30pm on the day in question.) The defendant provided disclosure at 5.16pm (46 minutes late).
The breach was trivial.
The defendant served its witness statements 55 minutes late. There were 700 pages of documents exhibited to the statement, some of which had not been disclosed previously. The defendant subsequently served a supplemental list of documents. The defendant then made an application to extend tome for service of the statement and for permission to serve a supplemental list of documents.
The fact that the witness statement was served 55 minutes late was trivial by itself. However the consider the entire circumstances the defendant’s breaches and actions were not trivial and relief was not granted.
BURT –V- LINFORD CHRISTIE [10/02/14] Birmingham CC (However compare with the Wain –v- Gloucestershire CC case discussed below).
The Defendant filed its costs budget one day late.
Filing the costs budget one day late was not a trivial breach.
The judge held that leaving matters to the last minute and still missing the deadline was unlikely to attract sympathy from the court, particularly when it leads to extra hearings.
During the proceedings the claimant requested further disclosure from the defendant in order to enable them to draft their witness statements. The defendant failed to disclose the documents requested and the claimant subsequently failed to serve their witness statements. Several weeks after the deadline for service, the claimant made an application to extend the time for service of the witness statements.
The claimant’s default was not trivial. Although relief was granted due to the particular circumstances of the case.
One of the defendants served a costs budget a day late.
A costs budget served one day late was a trivial breach. Relief from sanctions was granted on that basis.