Relief from Sanctions post Denton 2020 update
This case is a good example of how the Court can take into account both parties’ behaviour when looking at the 3rd stage “Denton” test and deciding whether to grant relief from sanctions.
Relief from Sanctions post Denton 2020 update – Soriano v Forensic News LLC & Ors [2021] EWHC 873 (QB) (13 April 2021)
Background of the case
This decision is a preliminary procedural point on a complex action brought against six Defendants.
The claim against the Sixth Defendant concerns two articles (referred to in the claim as “Publication 9” and “Publication 10”) posted by him on his open access internet blog. His blog “focusses on the perceived excesses of the Israeli national security state
Following an Application from the Claimant, a preliminary issue before the Court related to service outside of jurisdiction which was originally listed for the 28 October 2020 and later relisted for the 14-15 December 2020.
The Sixth Defendant had been aware of the hearing since the 6th October 2020 but did not serve his documents in support until 4-months later.
It was specifically noted that the Claimant had failed to comply with the Pre-Action Protocol and upon receipt of correspondence from the Sixth Defendant advising they were unaware of the new hearing date, failed to take steps to notify them.
Summary – including what this means
It was agreed between the parties that the Court should consider an application for relief from sanctions for the failure of Defendant to file documents 14 days before the hearing.
Was the breach serious or significant?
The breach was for 4-months and not contingent on the Sixth Defendant being provided with notice of the hearing.
It caused much disruption to the Court hearing including late skeleton arguments and the hearing time having to be extended.
It was therefore found that the breach was therefore both serious and significant.
Is there a good reason for the breach?
It was found the failure on the part of the Court to provide the Sixth Defendant with notice of the new hearing was a factor in relation to the breach, as was the Claimant’s failure to notify the Sixth Defendant of the hearing but that neither of these issues constituted a good reason for the breach.
He specifically commented that there was no good reason given as to why evidence could not have been served before 22 March 2021.
Considering all the circumstances should relief from sanction be granted?
Taking into account all the circumstance, the need to give effect to the rules of the Court, the reasons given for the failures and the conduct of all parties he decided to grant relief from sanction.
54. When matters are considered in the round, the Claimant shares a considerable allocation of the responsibility for the procedural confusion and disruption that has occurred. Moreover, the Claimant is in a position to address the evidence that has been belatedly served and has done so. In the event that relief from sanctions is granted, the Claimant does not seek an adjournment of the hearing. Further, there is some force in Ms Marzec’s observation that the Claimant positively seeks to rely on aspects of the Sixth Defendant’s evidence (for example as to publication of the blog having taken place in England and Wales) so as to plug (some of the) evidential gaps in the Claimant’s case. In all the circumstances, it would, as between the Claimant and the Sixth Defendant, be disproportionate and unfair to refuse to entertain the Sixth Defendant’s evidence.
55. It has been possible, with the considerable assistance of counsel (who, in addition to excellent and comprehensive skeleton arguments, helpfully focussed their oral submissions) to hear all of the oral argument within the period of time that was ultimately allocated. There has not been tangible disruption to other litigants. It would be undesirable to determine this application without the Sixth Defendant’s evidence which is, in part, highly relevant and which addresses some evidential gaps that were identified by Jay J.
56. In all the circumstances, therefore, notwithstanding the serious breaches of the Court’s orders for which no good reason has been given, I consider that the Sixth Defendant should be granted relief from sanctions, and the evidence on which he relies should be taken into account.
How can Partners In Costs help?
In the event a deadline is missed time is of the essence and Partners In Costs are here to help therefore please do not hesitate to contact us for speedy turnaround or any advice.
1.Be ahead of the game
If you anticipate an issue may arise regarding compliance with a rule which carries a sanction then you are always at liberty to apply, in advance, for extra time and such applications are much more likely to be viewed favourably by the judiciary.
Also, depending on the requirement there may be the ability to obtain consent from your opponent to extend the timetable
Be aware of the Rules for Costs Budgeting and give us as much Notice as possible!
2. Do not Delay
You need to apply for relief as soon as reasonably practical. Whilst there is no hard and fast rule as to when you should apply in our view it should be days not weeks.
3. Apologise and explain
This is not a time to take silly technical points or to point your finger at the Court or other side. Take responsibility for the failure and take all reasonable steps to remedy it. For example, if you missed a date for a Costs Budget to be filed – prepare it and apply at the same time.
4. The Application
An application must be supported by evidence, usually in the form of a Witness Statement from a party’s lawyer which describes the circumstances leading up to the breach.
Don’t turn it into a soap opera.
Where things have been missed – particularly where you blame another party – emotions run high even in the most professional of us.
Keep it simple, Stick to the facts – Admit Wrong Doing and APOLOGISE
5. The Listing
With the COVID protocols in place we are seeing all applications taking place on the phone – its therefore very important to make SURE that you file your bundle of documents ON TIME and in the proper format
Please get in touch if you need our help!
Article provided by Reuben Glynn
24.06.21