High Court sends clear message to judges on granting relief from sanctions

High Court: judge failed to direct himself properly

A High Court judges has sent a strong message to county courts about dealing with applications for relief from sanctions in a case where “a wholesale and flagrant disregard” of directions occurred.

Mrs Justice Swift overturned HHJ Milton’s ruling where he granted relief and ordered the defaulting claimant to pay the costs arising from an adjourned trial on the indemnity basis.

Biffa Waste Services v Dinler & Ors [2013] EWHC 3582 (QB) – handed down last month but the full judgment in which has only just been released – saw multiple failures to comply with directions by the claimants, who were injured when the defendant’s refuse lorry hit them. The defendant admitted the collision but denied negligence, and also hinted at elements of fraud in the claims.

Among the failures were significant delays in serving witness statements and the pre-trial checklist, not applying for permission to adduce oral evidence, and making no effort to agree with contents of the trial bundle, serving it the day before trial. Further, the listing and hearing fees were only received the day after stated in an ‘unless’ order.

Swift J said: “The picture that emerges is one of a complete lack of recognition on the part of the claimants’ solicitors of the need to comply with court rules and orders.”

While acknowledging that the judge had faced various difficulties in dealing with the case, she still found that his judgment contained “a number of serious defects”, including that he failed to direct himself on the principles which he should apply when determining an application for relief from sanctions, neither party having drawn his attention to rule 3.9.

“In particular, there is no indication at all that he had in mind the need to enforce compliance with rules, directions and court orders, or the need for proportionality. Those needs are clearly referred to in the amended overriding objective.”

The judgment also revealed “no exercise of balancing the relevant factors”, she continued. The only explanation for his eventual decision was that he considered that an adverse costs order would do “sufficient justice”.

Swift J referred to a host of post-April cases showing a hardening attitude to breaches. She said that in all the circumstances and taking into account the post-Jackson emphasis on conducting cases at a proportionate cost and in a way that does not expend more than a proportionate amount of the court’s time and resources, “I am satisfied that this was a case in which relief from sanctions should have been refused”.

“The judge himself observed in his judgment that his decision was ‘a very close call’. It seems to me that if he had had regard to the principles to which I have referred, his decision would inevitably been different.”

    Readers Comments

  • Peter Chambers says:

    I don’t suppose there is any chance of defendants suffering sanctions when they hand out skeleton arguments with all-new items in them as the hearing is due to begin? Thought not. What about when they were ten days late in providing their evidence (a single document)? Thought not. What about being a further two weeks late in serving their witness statement? Thought not. What about when they don’t even file it with the court? Thought not. Any chance of an adjournment on the grounds of Part 1 – unequal treatment? Thought not. Tough being a defendant, isn’t it?
    From a Claimant

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