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I recently mentioned the application I successfully opposed to have point of dispute struck out due to a failure to make an open offer when serving the points of dispute.
You will therefore imagine the no small sense of irony I felt when a week later I found myself opposing an application for relief from sanctions made by the same firm of solicitors where they had failed to give proper notification of an additional liability during a claim. They had advised the claimant had the benefit of an undertaking from a trade union when, in fact, there was an ATE policy in place. (There is a lesson to be learnt here. Before embarking on a campaign to persuade your local courts to take a very strict approach to breaches, make sure your own house is 100% in order).
The skeleton argument they had filed in support of their previous application had dealt at length with the guidance given by the Master of the Rolls as to the tough approach to be taken by judges to breaches of the rules post-1 April 2013 and concluded:
“It is necessary to give tough justice to the defaulting party so as to ensure proper compliance with the rules by others, to properly give effect to the … party’s expectation that rules will be complied with, and to enable the efficient administration of justice upon assessment.”
In the skeleton argument to their application for relief from sanctions they sought to argue the amendments to CPR 3.9 and relief from sanctions were no more than a simplification exercise to remove the need for judges to “tick off” each of the factors previously listed and thereby save time. The implication being that nothing of substance had changed since 1 April 2013.
Their application failed.
This is now the third application for relief from sanctions I have successfully opposed since 1 April 2013.
The other two concerned alleged failures to serve the correct documents in support of additional liabilities when commencing detailed assessment proceedings.
In one case the judge ruled there had been a breach and refused relief from sanctions.
In the other case the judge (wrongly) held there to have been no breach but held that if he had been wrong about that he would not have granted relief from sanctions.
Pre-1 April 2013, all three of these cases would have had a reasonable chance of succeeding. District Judges appear to have taken on board the new strict approach and are applying it accordingly.
Funnily, the higher courts are already starting to backpeddle.