Relief from Sanction: If you fail to prepare, you prepare to fail!
The judgment Ball V Ball & Ors was given by HHJ Davis-White on 11th October 2022 shows that an application for relief from sanction will not be successful if the party has had an adequate amount of time to comply with the directions leading up to trial.
Who, what, why, where – the claim was brought by the Claimant (“Ian”) against his father, the first Defendant (“Neil”), regarding an industrial estate known as Ash Holt Industrial Estate, Finningley, Doncaster, (Ash Holt”). Ash Holt was acquired by Neil and his wife (“Janet”) the second Defendant, and Neil’s brother, “Geoff”, now deceased. HHJ Davis-White was hearing a pre-trial review (PTR) in which one of the issues related to late service of the witness statements and other documents by the Defendant. HHJ Davis-White granted relief from sanctions in relation to the witness statements on a previous occasion. HHJ Davis-White also ordered that a CPR compliant trial bundle was filed by a certain date in time for the PTR.
On 28th September 2022, HHJ Davis-White gave directions, with sanctions, laying down a procedure for the trial bundles to be filed with the Court on 11th October 2022. It was also said that the trial bundle was to be served by 4pm on 10th October 2022, or the claim would be struck out. The Claimant’s solicitors had not prepared the bundles to be CPR compliant in time due to misinterpretation of instructions, IT problems and a lack of support staff. They also blamed the Defendants for not being available to cross-reference the bundles, however they were not provided with draft bundles to enable them to do so. The Claimant’s solicitor made an application after 4pm on 10th October 2022 seeking relief from sanction and an extension of time to serve CPR compliant bundles that had been properly cross-referenced by 4pm on 13th October 2022. HHJ Davis-White applied the 3-stage test in Denton to decide whether relief from sanction should be granted. HHJ Davis-White considered the Claimant’s breach to be the most serious matter as it caused the trial date to be in jeopardy and the case could not proceed without an adjournment. The reason for why the breach occurred was not found to be a good reason as “it is not appropriate to leave matters to the last minute and expect everything to run smoothly at the very last minute”, and considering all the circumstances, HHJ Davis-White did not see it fit to lift the sanction imposed on the Claimant. HHJ Davis-White also received an application for relief from sanction from the Claimant for late service of the witness statements, which he refused.
In conclusion, the HHJ-White did not see it fit to lift the sanction due to the seriousness of the breach and the effect it had on the trial. The claim was therefore struck out.
How can PIC help
PIC are here to advise you on whether costs will be recoverable in such cases like these, especially following Costs and Case Management Conference hearings where directions have been agreed/approved, and compliance with the directions is paramount for the smooth running of the case.
Rebekkah Haughton, Costs Draftsperson
29.06.2023