SANCTIONS HEARING 4: DOES DECADENT VAPOURS LEAVE A PLEASANT SMELL?
The second substantive decision was Decadent Vapours. Here the Court of Appeal overturned a refusal to grant relief from sanctions and the claimant’s case was allowed to proceed.
The claimant failed to make payments of fees by the appointed date. The cheque was put in the post the day before it was due but never reached its destination (and would probably have arrived late in any event). This came to light during the course of a hearing and the judge held that the action was automatically struck out. A second cheque was delayed in the post. The fee was subsequently paid using a solicitor’s credit card. The Circuit Judge refused relief from sanctions. The Judge held that the breach was not trivial and rejected the claimant’s application for relief from sanctions. The action was therefore ended and the judge ordered the claimant to pay costs.
THE COURT OF APPEAL DECISION: SOME FAILURES ARE MORE SERIOUS THAN OTHERS
The Court of Appeal held that the judge was in error.
- The risk that the claimant ran was a small one; that the cheque may arrive one day late, or it may go astray.
- All failures to pay court fees are serious, but some failures are more serious than others. This breach was near the bottom of the range of seriousness.
- There was no good reason for the breach. The solicitor knew, in advance, that the method of payment would give rise to a breach of the court order.
- At the third stage, however, the judge should have concluded that factor (a) pointed in favour of relief since the late payment of the fee did not prevent the litigation being conducted efficiently and at proportionate costs.
- Factor (b) also pointed in favour of relief since the breach was near the bottom of the range of seriousness. There was a delay of only in day and the breach was promptly remedied when the loss of the cheque came to light.
- The breach only affected the orderly conduct of litigation because of the approach adopted by the defendants and the court.
- On a consideration of all the circumstances of the case the only reasonably conclusion was to grant relief.
- If relief were not granted the whole proceedings would come to an end.
- Previous breaches of court orders may be taken into account but it was not proportionate to strike out the entire claim.
- The defendants ought to have consented to relief being granted so that the case could proceed without satellite litigation and delay.