Relief from Sanctions

Hello. My name is Alice Mahajan. Can I welcome you to this data lore? Webinar on relief from sanctions? What am I hoping to achieve in the course of the next 25 minutes or so? Well, firstly, I'm going to look at the general power that is available to parties to civil litigation in order to seek relief from sanctions that may have been imposed. The next stage of the WEBINAR is to consider in detail the principles that came out of the Court of Appeals decision in Mitchell on Mirror Group newspapers, having established those Mitchell principles will then go on to dissect the further guidance that was given by the Court of Appeal in the Dentyne on Dwight litigation on gonna deal with recent developments in case law to bring you up to speed on post Dentyne developments on that. A little bit of practical guidance to finish off on actually preparing the application to seek relief from a particular sanction. So let's start off with some general principles in a general power. Of course, what we are dealing with here is where there has been a failure to comply with the rule or a failure to comply with a practice direction or a failure to comply with a court order. If a party is in default, they will probably find that some sanction will be imposed by the court, the most draconian of which, of course, is the striking out off, off the claim or the striking out off the defense. But we don't need to worry too much about what the sanction imposed is. What the Webinar is going to focus on is actually the way in which you can as a litigator get relief from those sanctions. The general power for relief from sanctions is found in CPR 3.9 on the In essence, this says that on an application for relief from any sanction that is imposed by the court for failure to comply with the rule for failure to comply with a practice direction or a court order, the court will consider all the circumstances off the case to enable it to deal justly with that application. On doing so, it will have regard to the overriding objective the need for litigation to be conducted efficiently on did a proportion of cost and indeed, of course, to enforce compliance with practice direction. Rules cause orders, etcetera. The application itself is very straightforward. You could make an application using the standard application form, but the application itself must be supported by evidence. In other words, you're gonna have to have some form of witness statement accompanying the application in order to tell the court why you should be granted relief from the sanction that the court has imposed on. I'll come back to the evidence, the things that you need to having that evidence a little bit later on the power that we've just looked at in C in the CPR about obtaining relief from sanctions when it came into force was somewhat controversial because it has that statement within it that the court will consider ALS the circumstances off the case. But that's somewhat vague, that somewhat general, that doesn't really get us anywhere. And so when in 2000 and 14 the Court of Appeal finally got to grips with its because the case of Mitchell and Mirror Group newspapers was a case where application had been sort for relief from a particular sanction on, it went all the way to the Court of Appeal and the Court of Appeal gave guidance on the essence of the appeal. The point on the appeal was this. When looking at all the circumstances off the case, how strictly should the courts, at whatever level now enforce compliance with rules practice directions on called orders on? In essence, there were nine principles that came out off the Mitchell case that courts or judges need to consider when considering applications for relief from sanctions. Let's go through each of those points. Firstly, in Mitchell, the Court of Appeal said this. If the breach is trivial, the court will usually drunk relief if the application is made promptly. So in other words, if it is a minor breach, in essence, you you realize that you're in breach of a particular rule or practice direction. Sanction is imposed if you work in an application straight away and there is no prejudice to the other party in the case. More likely than not, the court will usually grant the application sort. However, the second point in Mitchell is this. If non compliance is not trivial, the burden of proof is clearly on the defaulting party. To persuade the court to grant relief on if there is a good reason for that noncompliance, then relief is likely to be granted. The third thing in Mitchell for the for the judge to consider is whether there have been further developments in the litigation since the actual breach of the practice, directional rule or called order. Things may have moved on. There may have been subsequent compliance. Notwithstanding that a sanction has been imposed on, the court will be able to look at those developments in the litigation to see if the party save for that one occurrence when a breach has taken place. All that has been on compliance. If that party has done everything else by the book or by the order or by the practice direction. Then again, that's a factor that the judge will weigh in deciding whether or not to grant a relief. However, what is also clear, and this is the fourth point from Mitchell, is this. That, overlooking a deadline is not a good Reese. In other words, at the fact that you just simply for gotten about a deadline for compliance with the rule or an order or a practice direction, that of itself is unlikely to get you anywhere for those of you who have also seen my preliminary case management Webinar. You will know that I suggested by way of a practical means of keeping on top off your caseload of dates by which certain things could do have on your wall a wall shot, a sort of yearlong planner with various dates so that you can keep on keep monitoring that wall planner to make sure that you're getting everything done on a case by a particular time merely overlooking a deadline is unlikely to get you anywhere. The fifth Mitchell principal refers to solicitors on. It's quite an interesting one. What the Court of Appeals said was that solicitors under pressure of work is rarely a good reason for granting relief. The courts are very alive now is the fact that some solicitors will have very busy practices. But the Court of appeal are clear that if, as a firm of solicitors, you are unable by virtue of having to heavier caseload to be able to comply with rules, practice directions, court orders, directions, etcetera, then simply you should not take that work on. You should work to your capacity. In other words, just because you've got three other cases that are due to have witness statements prepared. That is not sufficient reason for you not to comply with a direction to carry out disclosure by list in another case. So pressure of work from a solicitous point of view is unlikely to get you anywhere. The sixth Mitchell principle is an important one, and I cannot stress it highly enough. Applications that are made by parties for an extension of time before the deadline will be considered more favorably than any application that is made after the event on that has to be right, and it makes sense. Therefore, if you perceive that there is a risk in a particular piece of off litigation, the as you approach a particular deadline that you know that you're gonna be unable to comply, firstly, seek the agreement of the other parties to the litigation to get an extension for you to comply with that evidence the matter of a week or two weeks. The reality is that most parties are going to agree to that as long as it doesn't knock out the rest of the time table in preparing for a particular trial. So find out from the other parties if they'll agree to it, and if they agree to it, then your home and dry equally. If the other parties don't agree to it, then at least try and get your application in for an extension of time before the deadline actually comes along. Because the judge is always gonna look farm or favorably on that type of application than letting the deadline passed for compliance for compliance with the particular court order, practice direction rule, you're making it after the event, and therefore the court is not going to look as favorably upon that as it might do if you get something in before the actual breach occurs. The Final Three principles of Mitchell Aiken deal with very, very quickly. The seventh principle is if there is a very good reason for the failure again, very good reason will come to that in a moment when we look at the Dentyne principles, then relief will normally be granted. Obviously, if there's a if there's been a a death in the family of the celestial that's suddenly been taken ill, that, of course, is something that is, in effect force majeure. It's something that could not have been foreseen on. Therefore, relief will normally be be granted. If, however, and this is the eighth principle. If, however, your challenge to the sanction is that it was improperly imposed. In other words, there was no legal basis or no basis for the court to have applied the sanction, then your relief is not to make an application off this nature. The relief is actually by way of an appeal, because what you're saying, in effect, is that the judge was wrong in law. Toe have applied that particular sanction on. There's no way if the judge was wrong in law to have applied the sanction, that you're going to get any relief by making an application of this nature that we're focusing on in this webinar. Your only course of action will be to lodge an appeal against the Masters decision or the district judge's decision to impose the sanctions. The final principle from Mitchell was, there's this. That partial relief is not appropriate. You're either going to get relief from the sanction in its entirety or you're not going to get relief from a little. There is no middle ground here. There's no halfway house for you to get a relief from the sanctions. So what did Mitchell actually do? Well, obviously, it set down those nine principles for the court to apply when seeking to give relief if it wishes to do so from sanctions. But what, of course it also led to was an avalanche of cases that that argued how the Mitchell principles were to be involved Onda much off those cases for both of master level or district judge level. We're then going on appeal on It was quite clear that following Mitchell that further guidance was needed on the Court of Appeal to clarify the approach that judges had to take when applying the Mitchell principles. The Court of Appeal therefore revisited Mitchell principles in what has become known as the Dentyne and White. Litigation on Dented and White really gives judges clarity on the approach that they need to take to consider an application for relief from sanctions on Dentyne and indented in the Court of Appeals. Say this. A judge has to approach an application for relief from sanctions in three stages. The first stage is to identify, so it's it's if you like. It's a fact finding mission for the judge. It's to identify Onda, assess the seriousness and significance off the failure to comply with the rule, the practice direction or the court order. If at this first stage, the judge takes the view that the breach if you like or the failure to comply is insignificant, then stages two and three off the Dentyne guidance become less important because if it is insignificant, the chances are on there no major implications for the actual failure to comply, then more likely than not, relief will be the relief sort will be granted. But if it is significant, the judge will go on to look at Stages two and three. Stage two is for the judge to ask him or herself. Well, why did this default occur on That is, I've said, is a further fact finding exercise for the judge. What was the reason for the non compliance? What was the reason for the failure to comply on that? Of course, the the sort of half of that the foundation of that will be in the witness statement that accompanies the application noticed making the application for relief from the sanctions on will come back to looking at that reason why in a moment the first stage off the Dentyne process is to evaluate, let's assume the judge has taken the view that the failure to comply is significant. They have discovered the reason why there was such a failure to comply. The judgments then evaluate all the circumstances to enable the court to apply the overriding objective on deal justly with the application, so that, if you like, is the process by which the judge will go through. Considering the application that is made, can I turn now to some developments in the law? Post, Dentyne and obviously Post Mitchell, the first authority of which, you should be aware, is British Gas Trading LTD. Against a Cash and Carry Limited, a case decided in 2000 and 16. This dealt with the, uh, concept off the unless order because obviously, what has happened, what can happen in litigation is that if a party fails to comply with a rule or practice direction or a court order, one of the things that the court could do is issue on unless order that unless a party complies with that particular order or practice direction or rule, then the claim will be dismissed. All the defense will be struck out, etcetera. On. If you are seeking Teoh, apply from relief from a sanction where there is an unless order in place than the British gas and cash in carrying case is one to which you will have to have regard. Because what the court said in that case was that unless or that cannot be looked at in isolation, it's necessary to actually consider the reasons behind the underlying breach off the unless order. Obviously, it goes back to one of the Mitchell principles that I referred to earlier. If you do feel that you're gonna be unable to comply in advance with a particular order or a practice directional rule or even an unless order, you get an application in promptly to say, Here are the reasons why we can't do it. Can we get an extension of time on one of the things that the court emphasized in the British Gas and no cash and carry case is that a lack of promptness in in applying is a crucial factor at the third stage off the Dentyne guidance. Now, if you think back to dense and what was that third stage. Well, it was the court applying the overriding objective to say that in ALS the circumstances of the case is it just is it fair? Is it proportionate to grant the relief sort on British gas Case tells us that if you if there is the slightest delay in applying for relief from the unless order than that is gonna be a key factor for the judge to consider at the third stage off the Dentyne test. So again, and I stress this and I can't emphasize this enough, promptness is everything. You might not be prompted actually getting compliance with the rule or practice direction. Court order. But please, please, please can I encourage you to apply promptly if you are in default or if there is a sanction imposed, get it in. Get your application in as quickly as possible, as you possibly can. It is a matter off extreme importance because if you don't get it in properly, the course are let a court. The court is less likely to grant at the relief that sort. How else have the Mitchell principles and the Dentyne test been applied since 2014 when they came into being well, the principles have translated themselves across not just into applying for relief from sanctions in terms of where you fail to comply with the rule practice direction of all court order. They've also moved across into the arena of setting aside default judgments. Now, of course, a default judgment will arise that if a claimant serves a claim form on the particulars of claim on the defendant to that particular piece of litigation fails to respond, it is more likely than not that judgment is goingto be entered in default for the claimant. In that particular case on there is a raft of case law, which is too voluminous to go into here. But you'll certainly find it all in the white boucle, the Green book, all whichever text you use for your conducting your your civil litigation. But the rules on principles from Dentyne on from Mitchell have now moved across into the realms off, setting aside Biffle judgments on def you like. If you're applying to set aside a default judgment, those principles and the test that the judge will apply that we saw Indention is equally applicable to setting aside a default judgment now a word of warning. The law in this particular area is still developing apace on a weekly, if not monthly, basis. There are new decisions coming out that are slightly varying and changing the way in which the principles are applied to setting aside default judgment. So you need to be on top off those decisions if you have the situation where you have been instructed by a client who puts their hands up and says, Sorry, I didn't reply to this, and I have good reasons for doing so on in terms of the practicalities. When you make the application to set aside that default judgment, use the principles. Use the Mitchell principles if you can tow, actually form the application that you are making, because it will give it far more gusto if you are actually focusing your evidence in the witness statement to support your application on those particular principles on looking ahead to dent in the test that the judge is ultimately gonna have to apply to determine whether your application to set aside the default judgment is going to be successful. Finally, let me say a few things about the application itself, as I said at the outset of the Webinar thing application you make for relief from sanctions or to set aside a default judgment has to be supported by evidence on that evidence will be in the form of a witness statement. If the failure to comply with the particular rule or practice direction has been made by us, the solicitor auras, the ast, the person with conduct of the litigation, then it's important that that witness statement comes from you equally. If it's a litigant in person, they're going to set out the reasons why they have not complied with the particular rule. Our order, whole practice direction on what you have to focus on in that evidence is really the why the reasons why you actually did default or fail to comply with the rule, practice direction or cause order. Andi, I cannot overemphasize that the focus needs to be on that why you need to set out in that witness statement The reasons why there has been a failure to comply it may well be a simple Louds, that solicitor with conduct of the litigation, for example, I don't wish this on anybody, let alone a solicitor. Maybe they've had a heart attack. Maybe it's a relatively small solicitor's practice that is dealing with the claim on the fear and has a heart attack. There are unable to work and therefore there is known compliance. So therefore, that's the reason why there wasn't compliance with the court order Equally. What I would say by the same token is to emphasize if you can. On a lot of cases, it will be the case well, what is the actual prejudice to the other side in in granting the relief sort? Have the other side actually been prejudiced to a certain degree by your failure to comply with the rule practice direction, a court order on If there is little prejudice to the other side, then more likely than not, you are going to get the relief that you seek. The prospects of success on any type of application of this nature obviously depend on that reason why Onda, of course, the amount of prejudice that exists but as well as I mentioned this before, the timing off the application, the timing of the application is absolutely crucial. You must act promptly where a sanction has been impressive imposed the British gas case makes that clear. It's one of the principles within the dents and test at the third stage, it's ALS the circumstances off the case. So where does that actually leave you in terms of the practicalities? Well, one focus on the reason why you have to try and persuade the court, through the written evidence that there is a genuine bona fide the reason why there has been non compliance with the particular requirement. Secondly, if you establish that reason, say well, even though we have failed to comply with it, we've done everything else that the court has asked of us. That was one of the Mitchell principles we looked at on. If you have the end result that you are in this position, you must act promptly because if you don't act promptly, the chances are you will not get a relief from the sanctions. Well, there we are. I hope that has been off some use on that. I suppose one could. One can put it this way. Hopefully, you will never have need off the Mitchell principles or the dental in White Test. Why? Because I would encourage you as part of litigation to ensure that you do comply with rules, practice directions and called orders on in putting the case together at that initial stage. When you're setting directions, be realistic. Make sure you're not going to be putting agreeing to directions that you know in an early stage, you may have difficulty complying with the other side to the litigation. Are bound to agree a two week extension to a particular. It's a service of witness statements, whatever it may be. Plan ahead. Get things on the wall planner a wall chart and make sure you do everything you can to comply with them on with a bit of luck, if you do that, you will never, ever, ever have to watch this webinar again and have any recourse to have to apply for relief from sanctions. I hope you've enjoyed the last 25 minutes or so on. I look forward to seeing you again soon