What a relief – the return of common sense!

Published 15 February 2016

The Jackson reforms, which came into effect almost 3 years ago, and its approach to relief from sanctions, resulted in the courts applying a more strict approach to case management and enforcing compliance with rules and court orders than ever before. Mitchell v News Group Newspapers set the tone when the court showed a zero tolerance approach to non-compliance.

Following that decision, courts up and down the country felt obliged to strike out claims for minor procedural errors and many parties stopped cooperating with each other. This continued until the Court of Appeal restored common sense in the Denton appeals.

It expressed the view that parties should cooperate and must not act opportunistically or unreasonably in opposing applications for relief. If the breach was neither serious nor significant, there was a good reason for the breach and/or it was obvious that it should be granted, the court expected parties to agree applications for relief. The court also expected parties to agree reasonable extensions of time of up to 20 days.

Common sense prevails

Since then, there have been further decisions which indicate that a common sense approach has returned. In Marchment v Frederick Wise Limited & Anor, the court granted relief in relation to the claimant's failure to serve expert evidence and an amended schedule of loss in time. The court decided that while these were serious and significant breaches of court orders, the claimant should be granted relief nonetheless even though this meant vacating the trial date. The court believed that disallowing the claimant's expert evidence would prevent the just termination of his claim on its merits.

In Viridor Waste Management v Veolia Environmental Services Limited, the claimant served the Particulars of Claim late (by a matter of hours) and sought a retrospective extension of time and relief from sanctions. The court granted relief as the breach was neither serious nor significant and not one that had a serious impact on the litigation. The only disruption was the claimant's application for relief, which the defendant unreasonably opposed. The court criticised the defendant's conduct in refusing to agree the application and the defendant was penalised with indemnity costs for wasting court time and trying to gain unfair advantage.

In Michcon De Reya v Antonio Caliendo & Barnaby Holdings LLC, the claimant failed to provide notice of funding to the defendants on time and readily accepted that this was due to an oversight. They succeeded in applying for relief from the automatic sanction of being unable to recover the additional liabilities. The defendants (who had opposed the application) appealed, but the Court of Appeal felt that the correct approach had been adopted as the rules required a focus on the effect of the breach, rather than the consequences of granting relief. The appeal was dismissed.

Practical points

The message is clear. While it is still important to comply with rules, orders and practice directions, parties are expected to cooperate with each other. If one party finds itself in default, the innocent party must think very carefully before opposing an application for relief from sanctions.