The Court of Appeal has waded back into relief from sanctions by comprehensively overturning a post-Jackson but pre-Mitchell decision to grant relief.
Though the primary failure of the judge had been to overturn another judge’s decision to refuse the same relief without good reason, the court was also critical of how he approached rule 3.9.
The breach in Thevarajah v Riordan & Ors  EWCA Civ 15  was a failure to comply with an ‘unless’ order over disclosure in a business dispute. The sanction was that three of the defendants were debarred from defending the claim.
In August 2013, Mr Justice Hildyard refused an application relief, given the serious failures to comply and the provisions of the revised rule 3.9.
There was no appeal against this, but a second application for relief was filed shortly before the October trial and hearing it then took up more than four of the five days allocated to the trial, which was before Andrew Sutcliffe QC, sitting as a deputy High Court judge.
He decided that the order had been complied with, if belatedly, and noted that the defendants’ former solicitors had advised them that ahead of the August hearing that they had complied at that point. He granted relief under rule 3.9, and varied and revoked Hildyard J’s order under rule 3.1(7) to the extend he needed to.
The Court of Appeal found that the judge had been wrong to consider that a second application could be made under 3.9 – rather than 3.1(7) – “on the threshold ground that no proper basis had been put forward for revisiting Hildyard J's order”, such as there having been a material change of circumstances.
This was the reason the ruling was overturned, but the appeal court – led by the deputy head of civil justice, Lord Justice Richards – said there were several other “troubling features about the deputy judge's approach to the application before him”.
His approach to rule 3.9 “lacked the robustness called for by the guidance subsequently given by this court in Mitchell and gave insufficient consideration to the need (a) for litigation to be conducted efficiently and at proportionate cost, and (b) to enforce compliance with rules, practice directions and orders”.
He also failed to take as his starting point that the sanction in the unless order, which had not been challenged, had been properly imposed and complied with the overriding objective.
The court said Mr Sutcliffe seemed to place weight on principles derived from Rayyan al Iraq Co and Wyche, both of which were criticised by a differently constituted Court of Appeal in Mitchell.
Richards J said the deputy judge also paid “insufficient attention” to the fact that the second application had not been made promptly and that he allowed the hearing of the application for relief to take up a disproportionate amount of court time.