Mitchell should make courts more cautious about attaching sanctions to orders, says judge

Payment: impossible to say in advance whether default would be deliberate

The “more stringent regime” for obtaining relief from sanctions means that courts should be more cautious about the sanctions they attach to orders where they have that freedom, a deputy High Court judge has said.

N Strauss QC said that since the sanctioned party may find it difficult to obtain relief from anything other than a trivial breach, “the court should consider in advance whether the sanction will be a proportionate response to a breach of the order in all foreseeable circumstances”.

In Porter Capital Corporation v Zulfikar Masters, the successful claimant applied for an interim payment pending the taking of an account. The judge was also asked to order that, in the event of default, the claimant be allowed to enter judgment for the whole amount or, alternatively, the defendant be debarred from defending the proceedings on the account.

Having highlighted the need for caution in attaching sanctions to an order – unless, of course, the order was built into the CPR, as it was in Mitchell – Mr Strauss that where an order requires the payment of money, as opposed to compliance with a procedural direction, “a breach may not be deliberate or in any sense blameworthy, but due just to a lack of funds”.

In the case before him, he said the order sought was “wholly inappropriate” for a host of reasons, including that there had been no prior default justifying “a stringent order or any order other than the usual one”, and that it was “impossible to say in advance whether a default would be deliberate or otherwise blameworthy”.

The judge concluded: “While the courts now adopt a more rigorous approach to compliance with their orders than formerly, this is still some distance from the ‘one strike and you’re out’ regime implied by the order sought in this case, which even in its milder form would in my view be inconsistent with access to justice principles and probably with article 6 of the European Convention on Human Rights.”

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