Relief from sanctions applications

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.”

9 thoughts on “Relief from sanctions applications

  1. Simon is correct. The change in culture is not just signalled by the changes to CPR 3.9 and Jackson LJ’s now well known observations in the Fred Perry case. There is also a new limb to the overriding objective, which shows this is intended to be a root and branch change. A new sub-rule (f) to CPR 1.1(2) states that the o/o now includes “enforcing compliance with rules, practice directions and orders”.

    In his 5th implementation lecture, Jackson said the intention was to replicate the enforced culture change in Singapore, which went from an old-style system of tolerance to a zero-tolerance system practically overnight. Jackson claims that this caused short term agony for the profession – and much anger – but is now seen as having been very much for the greater good, and has given Singapore one of the best civil justice regimes in the world.

    Judicial training is certainly stressing that a culture change is intended, and in some big court groups the DCJ circulated local practitioner groups warning them that there will be a big change in culture on 1 April. I have seen memos from HHJ Stephen Stewart QC (DCJ for Merseyside and a member of the Rules Committee) and HHJ McKenna (Birmingham).

    But three caveats:

    – If unless orders are really to mean what they say, then county courts need to follow the CA guidance that they are orders of the last resort, which should not be made for ‘good housekeeping’ purposes. But many DJs make them at the drop of a hat, on paper and without notice, plainly for reasons of housekeeping. After 1 April, the raising of the stakes resulting from the changes to 3.9 means that such orders will probably be challenged.

    – I think that the courts are likely to treat breaches of unless orders far more seriously than breaches of ‘default’ provisions in rules or PDs which impose automatic sanctions without judicial intervention. Even under the new regime, where a party fails to serve a statement of reasons with a bill, I think it most unlikely additional liabilities will be disallowed so long as matters are put right in good time.

    – Previous attempts to impose discipline through draconian sanctions have led to chaos – anyone remember CCR Ord 17 r 11 and the CFA Regs 2000? – and judges have a long history of tough talking in seminar rooms and committees, only to back off with merciful exercises of discretion when actually confronted with cases where good claims get struck out for minor infractions, to the great prejudice of an innocent claimant, and with a resulting professional negligence claim which might mean more, rather than less, satellite litigation.

  2. It was I who made the original comment from an initial reading of the rules.

    Having been at the Manchester Judicial Forum last night where practioners were told in no uncertain terms that an application for relief post april will be dealt with robustly and that the two factors listed were far and away the most important consideration, I have no doubt my initial view was incorrect. A brave new world…

  3. I must admit Jacques, I stopped reading your post about 1/3 of the way down.

    Why do people insist on regurgitating things here, that they have read elsewhere?

  4. I can foresee three prominent words post April

    1. Assessed

    2. As

    3. Drawn

  5. That’s much appreciated, Simon. As to Mr Hartson’s comment, you can lead a horse to water but you cannot make it think!,

  6. Jacques, for whom do you work? is that your real name? Your comments are always good to read and extremely informative

  7. Hi Real – thank you. I am afraid that Jacques Hughes is a nom de plume. I use it not because I am afraid of revealing my identity, nor because I want to be disrepectful to others, but because it allows me to comment freely on issues which, using my own name, I could not comment on having regard to the sensitivities of clients and others.

  8. Can any one suggest what form to use for an application for relief from sanctions? I meant what form number?

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