"HISTORIC" SANCTIONS DECISIONS: ARE YOU GOING TO APPLY TO APPEAL OUT OF TIME

In Denton -v- White [2014] EWCA Civ 906.   the Court of Appeal stated that we think that the judgment in Mitchell has been misunderstood and is being misapplied by some courts. It is clear that it needs to be clarified and amplified in certain respects.

ARE PARTIES GOING TO APPLY “HISTORIC” SANCTIONS CASES OUT OF TIME

There are, without a shadow of doubt, numerous, possibly thousands, of cases where Mitchell was “misapplied” by the lower courts. The judges, of course, did not have the benefit of the “clarification” in Denton.  Are parties now going to apply to appeal out of time in relation to those decisions?

HERE IS THE ULTIMATE IRONY: APPLICATIONS TO APPEAL OUT OF TIME ARE DEALT WITH UNDER CPR 3.9 (AND THUS UNDER DENTON).

In Sayers -v- Clarke the Court of Appeal allowed permission to appeal out of time, stating that the 3.9 criteria (as it then stood) applied.

Brooke L.J.

“21. In my judgment, it is equally appropriate to have regard to the check-list in CPR 3.9 when a court is considering an application for an extension of time for appealing in a case of any complexity. The reason for this is that the applicant has not complied with CPR 52.4(2), and if the court is unwilling to grant him relief from his failure to comply through the extension of time he is seeking, the consequence will be that the order of the lower court will stand and he cannot appeal it. Even though this may not be a sanction expressly “imposed” by the rule, the consequence will be exactly the same as if it had been, and it would be far better for courts to follow the check-list contained in CPR 3.9 on this occasion, too, than for judges to make their own check-lists for cases where sanctions are implied and not expressly imposed.”

SO IF YOU WANT TO APPEAL A “MITCHELL” DECISION BECAUSE IT WASN’T A “DENTON” DECISION THE COURT WILL HAVE TO CONSIDER THE “DENTON” CRITERIA

I am not going to go through the entire “Denton” criteria here.  That has been done on numerous occasions in this blog. However we now have a major paradox. The Court will have to apply the Denton criteria to see whether,  Mitchell was “misapplied” because the first instance judge did not follow Denton.

ANYONE APPEALING OUT OF TIME ON THIS BASIS WILL HAVE TO DO SO QUICKLY (IT MAY ALREADY BE TOO LATE)

The Denton decision has now been with us for a week.   The Court of Appeal confirmed that some judges were taken an “unreasonable approach” to CPR 3.9l Anyone considering appealing decisions made because the first-instance judge was “unreasonable” will have to do so extremely promptly.

“37. We are concerned that some judges are adopting an unreasonable approach to rule
3.9(1). As we shall explain, the decisions reached by the courts below in each of the
three cases under appeal to this court illustrate this well. Two of them evidence an
unduly draconian approach and the third evidences an unduly relaxed approach to
compliance which the Jackson reforms were intended to discourage. As regards the
former, we repeat the passage from the 18th Implementation Lecture on the Jackson
reforms to which the court referred at para 38 of its judgment in Mitchell: “[i]t has
changed not by transforming rules and rule compliance into trip wires. Nor has it
changed it by turning the rules and rule compliance into the mistress rather than the
handmaid of justice. If that were the case then we would have, quite impermissibly,
rendered compliance an end in itself and one superior to doing justice in any case”.

HERE’S THE RUB: IS A RESPONDENT TO AN OUT OF TIME APPEAL UNDER A DUTY TO CONSENT?

Paragraphs 40 – 43 of Denton put an onerous duty on a respondent to a relief from sanctions application to consider whether they object. A failure to “act reasonaby” can lead to draconian costs sanctions.

40. Litigation cannot be conducted efficiently and at proportionate cost without (a)

fostering a culture of compliance with rules, practice directions and court orders, and
(b) cooperation between the parties and their lawyers. This applies as much to
litigation undertaken by litigants in person as it does to others. This was part of the
foundation of the Jackson report. Nor should it be overlooked that CPR rule 1.3
provides that “the parties are required to help the court to further the overriding
objective”. Parties who opportunistically and unreasonably oppose applications for
relief from sanctions take up court time and act in breach of this obligation.
41. We think we should make it plain that it is wholly inappropriate for litigants or their
lawyers to take advantage of mistakes made by opposing parties in the hope that relief
from sanctions will be denied and that they will obtain a windfall strike out or other
litigation advantage. In a case where (a) the failure can be seen to be neither serious
nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise
obvious that relief from sanctions is appropriate, parties should agree that relief from
sanctions be granted without the need for further costs to be expended in satellite
litigation. The parties should in any event be ready to agree limited but reasonable
extensions of time up to 28 days as envisaged by the new rule 3.8(4).
42. It should be very much the exceptional case where a contested application for relief
from sanctions is necessary. This is for two reasons: first because compliance should
become the norm, rather than the exception as it was in the past, and secondly,
because the parties should work together to make sure that, in all but the most serious
cases, satellite litigation is avoided even where a breach has occurred.
43. The court will be more ready in the future to penalise opportunism. The duty of care
owed by a legal representative to his client takes account of the fact that litigants are
required to help the court to further the overriding objective. Representatives should
bear this important obligation to the court in mind when considering whether to
advise their clients to adopt an uncooperative attitude in unreasonably refusing to
agree extensions of time and in unreasonably opposing applications for relief from
sanctions. It is as unacceptable for a party to try to take advantage of a minor
inadvertent error, as it is for rules, orders and practice directions to be breached in the
first place. Heavy costs sanctions should, therefore, be imposed on parties who
behave unreasonably in refusing to agree extensions of time or unreasonably oppose
applications for relief from sanctions. An order to pay the costs of the application
under rule 3.9 may not always be sufficient. The court can, in an appropriate case,
also record in its order that the opposition to the relief application was unreasonable
conduct to be taken into account under CPR rule 44.11 when costs are dealt with at
the end of the case. If the offending party ultimately wins, the court may make a
substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If
the offending party ultimately loses, then its conduct may be a good reason to order it
to pay indemnity costs. Such an order would free the winning party from the
operation of CPR rule 3.18 in relation to its costs budget.