The courts’ tough approach to relief from sanctions since 1 April has been tempered by a ruling where it declined to strike out a defence because of errors made in complying with an ‘unless order’.
In Wyche v Careforce Group PLC (unreported, QBD, 25 July 2013), the defendant was subject to an ‘unless order’ in relation to e-disclosure.
According to summaries of the case published online, the defendant’s compliance was inadequate in relation to the search terms used and the miscategorisation of certain documents as privileged. The errors were rectified once they were drawn to the defendant’s attention.
The claimant applied to strike out the defence on the basis of the non-compliance and the defendant sought relief from sanctions under new CPR 3.9.
Mr Justice Walker granted relief, reportedly ruling that the court could make allowance for human error and that whether it was inadvertent or deliberate was a relevant – but not determining – factor. Here the errors had been inadvertent, they had been speedily remedied, and they had not affected the scheduled trial date.
Therefore he said that the claimant’s application to strike out the defence ought not to have been brought and the defendant was entitled to relief from sanctions.
A briefing from City firm Herbert Smith Freehills commented: “This decision illustrates that, despite the court’s increased focus on compliance as a result of the Jackson reforms, the court can still make allowance for human error and grant relief in an appropriate case.
“Nonetheless, given the court’s broad discretion on such matters and the general trend toward a strict approach, parties would be well advised to comply carefully with rules and court orders so as to avoid falling foul of tough decisions under the new regime.
Writing on his blog, Gordon Exall, a barrister at Zenith Chambers in Leeds, added: “It appears that breach of a peremptory order is not fatal. Honesty about the breach and prompt action to rectify can be extremely important factors.”