The High Court has overturned a cost judge’s refusal to grant relief from sanctions that prevented claimant lawyers from recovering their success fees, and instead accused the defendants of “unreasonable and opportunistic” conduct.
Master Rowley had admitted to “qualms” over the sanction he imposed earlier this year for failure to serve copies of conditional fee agreements and success fee details, but felt compelled to do so by the Mitchell ruling.
Mr Justice Barling said that, even without the subsequent ruling in Denton, he would have regarded the breach as “trivial and insignificant”, adding that there was an absence of “significant prejudice of any kind to anyone”.
Barling J went on: “It is clear, as the judge found, that there was no significant prejudice to the defendants, or to the efficient conduct of the assessment proceedings at proportionate cost, or to the court or to other litigants as a result of the breach itself.
“It is evident that in so far as there has been unnecessary cost, delay and use of the court’s finite resources in hearing the application for relief from sanctions and this appeal, this is the result of what in my view was the unreasonable, opportunistic and non-co-operative approach of the defendants to the claimant’s unfortunate oversight.”
Delivering judgment in Long v Value Properties and another  EWHC 2981 (Ch), Mr Justice Barling said Master Rowley had not received “the assistance he should have done” with interpreting the meaning of triviality.
“His instinct was to hold that the breach was trivial but he appears to have fallen into the error by attaching insufficient weight to the circumstances surrounding the breach as well as to the absence of any significant prejudice of any kind to anyone.
“The judge also appears to have fallen into the error identified by the majority in Denton, in that having concluded the breach was not trivial, and that there was no good reason for it, he regarded the application for relief from sanctions as bound to fail.”
Barling J held that although overlooking the requirements of a practice direction was not a “good reason” for a breach, when all the relevant circumstances were considered, including the speed with which the claimant remedied the default and applied for relief, complete relief from the sanction should be granted.
He added: “Had the defendants taken a different course the matter could probably have been completely resolved within the overall period of the extension of time which they applied for and were granted by the claimant, or very soon thereafter.
“This would have saved the parties and the court the time and expense of a lengthy hearing before the judge and an even longer appeal hearing before me.”