Application for relief from sanctions

Relief from sanctions applications are currently governed by CPR 3.9:

“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol;
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely trial date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party.”

This is to be changed from 1 April 2013 to a newly worded CPR 3.9:

“On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—

(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.”

I interpret this as being a significant change in emphasis. Previously the courts have tended to approach applications for relief from sanctions as being about achieving an outcome that it ultimately “fair” regardless of the delay and cost this brings to the litigation. The new test appears to be one firmly refocused on robust case management with justice being achieved through stricter enforcement of court orders and rules thereby bringing swifter resolution to the dispute and in a more cost effective manner.

If that interpretation is correct, it means case law previously governing applications for relief from sanctions will become largely redundant.

Applications for relief from sanctions in costs matters tend to arise where there has been a failure to notify of additional liabilities during the course of a claim or a failure to serve the appropriate documents in support of additional liabilities when commencing detailed assessment proceedings.

Again, the transitional provisions are worth reviewing:

“The amendments made by … these Rules do not apply to applications made before 1 April 2013 for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order.”

Therefore the new stricter test applies depending on when the application for relief from sanctions is made, not the date of the breach.

Where there is, for example, a failure to give proper notification in May 2010 but an application for relief from sanctions is not made until May 2013 it will be the new test that applies.

12 thoughts on “Application for relief from sanctions

  1. Good. At the moment it’s basically pointless getting a DCC. If the other side come up with some belated PoDs and apply to set aside within a month or so, it’s currently guaranteed to be set aside. Hopefully this new test will apply to it!

    OTOH, I have some clients who STILL keep forgetting to serve that N251!

  2. I’m note sure I agree that this rule change is relevant to DCCs (although Dr Friston expresses a different view). The rules as to setting aside a DCC are stand alone and make no reference to applications for relief from sanctions.

  3. Interesting. I’ve currently got a file where the other side didn’t bother serving an N251. I’ve notified them and they haven’t applied as they don’t believe they have to.

    Hopefully, they’ll leave it a few weeks before speaking to someone who knows what they’re doing. :-)

  4. disagree Simon,when considering an Application to Set Aside a DCC, the Court will look at CPR 3.9 as to whether there are “good grounds” – and unless you know whats in the new CPD Simon(??) thats unlikely to change

  5. Aren’t the words here: “the court will consider all the circumstances of the case” the most important

    I can’t see in practice how this is will be any different to the current test under 3.9. Aren’t all the circumstances of the case just the current 3.9 factors anyway?

  6. I agree with Simon that the more stringent test will apply, and “need to enforce compliance” makes it almost impossible to grant relief – but this will apply to DCC and Notice of Funding defaults. Interestingly, the rule changes remove the CPR sections regarding default in service of Funding Details,so there is no sanction post 31.03.13, and the Transitional Provisions dont capture it, so post 31.03.13, Defendants cant escape payment of pre 01.04.13 CFA additional Liabilities where no N251 was served :)

  7. This is actually likely to be dealt with in the new Costs Practice Direction by preserving the current rules for those cases where additional liabilities were entered into before 1/4/13. The current CPD contains transitional provisions that dealt with the introduction of the CPR. This still contains provisions relating to the old Scale 1.

  8. “The provisions in the CPR relating to funding arrangements have accordingly been revoked (either in whole or in part as they relate to funding arrangements) with effect from 1 April 2013; but they will remain relevant, and will continue to have effect notwithstanding the revocations, after that date for those cases covered by the saving provisions.”

    The provisions listed specifically include CPR 44.3B and 44.15 re notices of funding and sanctions for non compliance.

    As Simon indicated, therefore, to ensure recovery of success fees etc you will still need to have complied with the ‘old’ notice requirements.

  9. Sorry – should have said. The bit in quotes is taken from paragraph 1.3 of the draft PD suplementing CPR 48 (transitional provisions).
    All we need now is for them to actually publish it…

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