CORONAVIRUS CATCH UP 1: DENTON AND RELIEF FROM SANCTIONS
I have, recently, been writing primarily about the impact of coronavirus on lawyers and civil procedure. Some cases in “mainstream” civil litigation have been overlooked. To prevent a “backlog” of cases here is a link to, and brief summary of, decisions relating to the Denton principles and relief from sanction. I stress that these are brief summaries and you should link through to the main case for a full explanation.
Ball v Ball & Anor [2020] EWHC 1020 (Ch)
Additional documents in a Part 8 claim that had not been disclosed previously were allowed to be relied upon without a formal application for permission or for relief from sanctions. The documents were seen to be helpful to the case, the prejudice to the other side was minimal since they would already be aware of the documents and as per Denton the breach was not serious, it was thought to be helpful to have the documents and all the circumstances of the case made it appropriate to give permission.
Permission was sought to rely on further evidence that was served late. The Court considered that in the circumstances of the case, there was no purpose in applying the three-stage test derived from Denton and order was made permitting the claimant to rely on the evidence.
Relief from sanctions regarding non-compliance with CPR 33.2 notice of intention to rely on hearsay evidence was considered. It was found that the breach was not serious or significant (as it had made it clear throughout what the Claimant’s intentions were with respect to the witnesses), the failure occurred because the Claimant was a litigant in person and although the breach had some impact on the efficient and proportionate conduct of the litigation, after consideration of all the circumstances, it was appropriate to grant the Claimant relief from sanctions.
Mr Esqulant did not comply with an order to file and serve a witness statement but was allowed to give evidence at trial by reason of him having been witness summonsed. The Appellant submitted that relief from sanctions was required to rely on this evidence and that if there had been an application for relief it would have been refused. It was held that the Court is able to dispense with the need for a formal application of relief from sanctions and if an application had been made, it would have been granted. The appeal was dismissed.
An application for an order that unless the claimant pays the final instalment of security for costs the claim should be struck out was successful. The three-stage test in Denton was applied and it was considered whether imposing the sanction of strike out, if the unless order was not complied with, was proportionate.
It was considered whether the court should interfere with a decision not to allow Mr Edinburgh to amend his points of dispute on a bill of costs. As per CPR 46PD para 6.15, permission is not required to vary points of dispute and therefore it was not necessary for Mr Edinburgh to apply for relief from sanctions.
A failure to comply with a Legal Services Payment Order was not granted relief from sanction. The breach was serious as it inhibited the other party’s ability to prepare for the appeal hearing, the breach occurred through a deliberate choice and there was a history of not complying with court orders.
Background: A default costs certificate was obtained by the Appellant. The Respondent applied to have this certificate set aside. The SCJ applied the Denton test and held that it was appropriate to make the setting aside conditional upon the Respondents filing at court and serving points of dispute by a certain time.
The case: The Appellant appealed against this order however Mr Justice Chamberlain said that there was no material error of approach by the SCJ.