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Relief from Sanction

June 13, 2014

In the case of Bari and others v Alternative Finance Ltd and another (2014) the court ordered relief from sanction but only just. The Claimant’s Solicitors had until the 18th October 2013 to file a costs budget at the High Court.

They did try and send the costs budget by fax at 21:00 on that date but this failed and did not reach the Court until the next working day which was the 21st October 2013.

The Claimants’ Solicitors then made an application to the Court seeking relief from sanction which would arise under Rule 3.14 of the Civil Procedure Rules (CPR).

“Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.”

Relief is considered by reference to 3.9

3.9
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.

Deputy Master Matthews looked at the case of Mitchell v News Group Newspapers Limited 2013 and had to decide whether Rule 3.9 of the CPR allowed the relief to be granted. He further looked at the case which examined the differences between “trivial” and “non-trivial” breaches of the Rules.

His first thought was that the breach was trivial but on further reflection he was not happy with the way the matter had been dealt with by the Claimants’ Solicitors. In particular, their late start preparing the budget, the day before the deadline. The fee earner was unwell and the file had not been passed to anyone else until the afternoon of the deadline. No one checked to see if the fax had been sent, it had not due to failure in the sending process.

The Claimants Solicitors also would not let the Defendant have any copy documents showing when the documents had been lodged at the Court. The Defendant was then, in the circumstances, obliged to make application to the Court to obtain the documents.

Deputy Master Matthews allowed relief from sanctions but was very unhappy with the way the matter had been conducted by the Claimants Solicitors and as such he would not order the Second Defendant to pay costs in the matter. He ordered, as a show of the Court’s displeasure towards the Claimants’ Solicitors as to their dealing with the matter, costs to be paid on an indemnity basis.