Recent Decision Suggests Sanctions Should Only Rarely Be Implied Into Court Rules And Orders Where Not Expressly Stated

In a recent decision, the Chief Master found that an order requiring a defendant to make any application for strike out by a certain time did not contain an implied sanction. Therefore, the defendant's retrospective application for an extension of time did not fall to be decided under the strict regime which applies to applications for relief from sanctions: Djurberg v London Borough of Richmond [2019] EWHC 3342 (Ch).

The courts have previously held that sanctions should be implied into certain court rules and orders which do not contain express sanctions - for example where a party sought to file a notice of appeal or respondent's notice after the relevant deadline had passed (see our blog posts here and here). This has meant that parties in breach of these rules and orders have had to apply for relief from sanctions under CPR 3.9, and the three-stage test established in Denton v TH White Ltd [2014] EWCA Civ 906 (outlined here) has applied. What has been less than clear, however, is how far this principle extends, and when the court will (or will not) imply a sanction into a rule or court order which is silent on the point.

In the present case, in declining to imply a sanction, the Chief Master commented that, in general, sanctions should not be implied unless it is obvious that a sanction was intended. This may provide some comfort to litigants as it suggests that the courts are likely to exercise restraint in implying sanctions for breach of rules and court orders. However, given the continued lack of a clear test as to when a sanction may be implied, this remains an obvious area of risk.

Alex O'Connell-Danes, an associate in the disputes team, considers the decision further below.


The claimant was involved in long running litigation against the defendant, the London Borough of Richmond, in relation to his plot of land on the River Thames. At a case management conference on 7 May 2019, the defendant indicated that it wished to apply to have the claim struck out. The court ordered that any such application must be issued and served by 31 May 2019, and that it should be listed for hearing on 3 September 2019 (at the same time as the claimant's application to amend the particulars of claim).

At the 3 September hearing it transpired that the defendant had failed to issue an application notice in relation to its strike out application (although it had filed a witness statement, draft order and skeleton argument in support of the...

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