2019 AND CIVIL PROCEDURE – THE YEAR IN REVIEW (3): SANCTIONS AND RELIEF FROM SANCTIONS (OR NOT…)

Another certainty about writing about civil procedure is that every year will bring a batch of applications relating to sanctions and relief from sanctions.  This year has been no different.  We start off (from the end of last year) with a failure to serve a costs budget on time and relief from sanctions being refused.  The final case in this review emphasises the importance of applications for relief from sanctions being made timeously.

THE END OF 2018

Looking back 12 months just about brings in the decision in  BMCE Bank International Plc v Phoenix Commodities PVT Ltd & Anor [2018] EWHC 3380 (Comm)

• “This is an archetypal case where it would not be appropriate to grant relief from sanctions”: another late costs budget case.

“This is an archetypal case where it would not be appropriate to grant relief from sanctions. There was a serious breach without good reason, followed by a very late application to seek relief, and a consideration of all the circumstances demonstrates that it is not an appropriate case for relief. The failure to comply with the rules has prevented the litigation being conducted efficiently and at proportionate cost, there is a need to enforce compliance with the rules of the CPR in relation to costs budgeting, and on a consideration of all the circumstances relied upon it is not appropriate to grant relief from sanctions.”

FEBRUARY

• Hutson & Anor, The Personal Representatives of v Tata Steel UK Ltd [2019] EWHC 143   (Extension of time for placing litigants on register for group litigation order).
• If you are at trial and haven’t paid the trial fee: strike out is automatic: a formal application for relief from sanctions needs to be made.

“the judge appears also to have had in mind that this matter could and should have been raised by the appellant at an earlier stage. That seems to me to have failed to give weight to the statement in Marcan that the strikeout here was automatic and that it was for the defaulting party to apply for relief from sanctions in order to revive the action.”

• Defendants refused relief from sanctions: inadequate explanations will not suffice. 

“I  agree with the Claimants that when a party seeks relief from a sanction, the applicable standard of evidence required to explain its failure to comply with the obligation in question should be no lower than the standard that applies when the court decides whether to impose a sanction in the first place. It would be illogical and contrary to the underlying policy mentioned above for a party to be relieved from a sanction based on a lower standard of evidence than would have been required to avoid the imposition of the sanction.”

• Relief from sanctions granted when witness statement served late: decision upheld on appeal.

MARCH

• Adetoye v The Solicitors Regulation Authority [2019] EWHC 707  (Good reason for delay when notice sent into appellant’s spam folder).
• Relief from Sanctions, late service of notice of appeal and the litigant in person.

“I am unable to accept the contention that it is necessary for a lawyer to be instructed before adequate grounds of appeal, sufficient to bring the appeal before the court, can be drafted”

• “The defendants did not take the directions seriously enough”: another relief from sanctions case.

“They seem to have overlooked entirely that the consequence of their own delay was that the deadline for his skeleton argument was the very day of the hearing. That was not just inconvenient for the claimant. It would have given the Court no help at all. Pre-reading, as should be obvious, is a vital part of litigation. On an application of this kind it is absolutely essential. Without it, the Court is unlikely to be adequately prepared to deal with matters efficiently on the day of hearing.”

• “Outside the realms of fiction”, Not necessarily a prudent way to conduct litigation: witness statements, witness summaries and relief from sanctions. 

“Outside the bounds of fiction, it is rare that a party will choose to call a witness “blind”, without first obtaining a statement or proof of evidence, or some clear indication that the witness would give evidence favourable to the case of the party calling the witness. That is because it is rare that a party will be well-advised to do this at all, given the strong and fundamental rule that a party is not normally entitled to cross-examine or seek to discredit his own witness.”

• Default judgment set aside, relief from sanctions granted: action then struck out: remembering the basic obligation to file a defence on time. 

APRIL

• Ablynx NV & Anor v Vhsquared Ltd & Ors [2019] EWHC 792 (Pat) (Failure to serve documents with claim form not a serious nor significant default).
• Witness statements when the witness cannot read English: Not grounds for striking out, relief from sanctions may not be required.
• Relief from sanctions granted where money paid 17 hours late: “A sense of perspective is necessary”. 

“Ultimately, a sense of perspective is necessary. For the delay of a few hours which made no practical difference whatever, it would be disproportionate and unjust to deprive the appellant of an opportunity to challenge the Default Costs Certificate”.

MAY

• Global Horizons Corporation -v- Gray [2019] EWHC 1132 (when do Denton principles apply to service of a supplementary expert report).

JUNE

UTB LLC v Sheffield United Ltd [2019] EWHC 1377 (Ch) (Application for relief from sanctions in order to dispute authenticity of documents is refused)

JULY

Hanson & Ors v Carlino & Anor [2019] EWHC 1940 (Ch)  (Judgment in default and Denton principles)

AUGUST

 Goknur Gida Maddeleri Enerji Imalat Ithalat Ihracat Ticaret VE Sanati A.S (Goknur) v Organic Village Ltd [2019] EWHC 2201 (QB),  (Both sides late with witness evidence: both sides refused relief from sanctions).

Castle Trustees Ltd -v-Bombay Palace Restaurant Ltd [2017] EWHC 3893 (TCC) (Relief from sanctions granted when witness and expert evidence served late)

OCTOBER

• “Witness summaries, witness summonses and relief from sanctions: all in one case…”
• Relief from sanctions: candour from the applicant and no evidence from the defendant to prove prejudice.  “it seems to me that it is incumbent on the defendant to have adduced evidence that it did, in fact, so place it if that is a point on which it wants to rely”

• Refusal to grant relief from sanctions overturned on appeal: “The sanction was wholly disproportionate and it was wrong not to grant relief.”

“In my judgment, in all the circumstances, the sanction was wholly disproportionate and it was wrong not to grant relief. Accordingly, I allow this appeal.”

• Late service of a Reply: relief from sanctions would have been granted – if it had mattered.

NOVEMBER

• Service of the Particulars of Claim and the trap for the unwary claimant: the trap operated and relief from sanctions not granted. 
• Anonymous litigant not granted relief from sanctions.

“all the circumstances of the case militate against granting the Claimant relief. This is a paradigmatic example of the conduct of a litigant which has prevented the court and the parties from conducting the litigation efficiently and at proportionate cost. The Claimant has shown no respect for the Orders of this Court.”

• Relief from sanctions: candour from the applicant and no evidence from the defendant to prove prejudice.

“it seems to me that it is incumbent on the defendant to have adduced evidence that it did, in fact, so place it if that is a point on which it wants to rely”

• Application for relief from sanctions: the importance of prompt applications.

“…  a factor in the balance against relief was the serious delay of two months in making the application for permission to rely on the witness statements after those statements had been prepared and served on the Defendants. There was no good reason for that delay. There is no reason in principle why egregious and unexplained delay on the part of a litigant in making an application might not at the third stage of the Denton analysis outweigh the first two factors which are otherwise in favour, even strongly in favour, of the grant of relief.