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I mentioned the other day the new test for relief from sanctions applications and suggested this is intended to be a much tougher test. One reader disagreed on the basis that:
“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?”
I defer to others better informed.
David Marshall, managing partner of Anthony Gold, was quoted in Solicitors Journal saying that lawyers who apply for relief from sanctions under the new rules will no longer be able to take advantage of a list of extenuating circumstances.
Dominic Regan writing in the New Law Journal:
“The current genteel approach is to be replaced by a much harsher one for all applications made from 1 April, regardless of how long ago the breach arose. … Judges in their current training are being told to be firm and less forgiving. You have been warned.”
District Judge Buckley writing in the Solicitors Journal:
“a tougher CPR 3.9 is being introduced. It is intended that relief from sanctions will be less readily available and district judges are being encouraged to be robust. Lack of prejudice may on its own be insufficient.”
District Judge Gold writing in the New Law Journal:
“obtaining relief from sanctions will be tougher when you apply on or after 1 April 2013 (r 5). The raft of the nine specific CPR 3.9 factors to be taken into account as part of all the circumstances (interests of the administration of justice, whether application made promptly, whether failure to comply was intentional and the rest) has been dumped. … The change is intended to reflect the Jackson recommendation that the courts should be less tolerant of unjustified delays and breaches of orders. Unless the weakness or strength of the applicant’s substantive case is clear as a pikestaff, we suggest that the courts will not normally take substantive merits into account in determining a relief application.”