Relief From Sanctions: 10 Trends, Tips And Thoughts From The Trenches

This feels like an appropriate time to reflect on my experiences arguing dozens of these applications in a range of different courts. It has been a little over 4 years since the revision to CPR 3.9 which refined the test for relief from sanctions, and 3 years since the seminal clarification of the applicable principles in Denton v Utilise. Finally, it feels as though the changes have properly bedded in. Here are some of my observations, based on personal experience:

I can vividly remember the general panic after Master McCloud's decision in Mitchell, which in turn led to a number of county courts making rather draconian decisions where a party was even a day late in complying with a deadline. The decision in Denton brought much needed clarity, and as lawyers have become familiar with the 3 stage test, the number of applications has diminished. There was a fear that the effect of Denton was to nullify the rule change altogether, but my sense overall is that there has been a positive impact upon conduct. Recently there seem to have been, in the reported cases, an increase in the proportion of applications which have been refused, but this is probably to be explained by the fact that as parties have generally stopped resisting applications where the breaches are trivial, the applications which come to court are those where the non-compliance is more serious and there is a better chance of the refusal of relief. It is always dangerous to generalise, but I have a sense that the chances of being granted relief are slightly higher in the Senior Courts than in the County Court. Perhaps this is because administrative resources appear, to an outsider, to be somewhat more strained in some of the County Courts, so that their judges necessarily have to adopt a less lenient view; perhaps because High Court cases will generally be worth more, the consequences of refusing relief will seem more draconian and therefore be less likely to be chosen by the court; or perhaps because smaller cases have to be run on a tighter budget, there is a greater chance of the situation where a case is not pursued proactively, with repeated failings, rather than the sort of one off mistake which occurs in large but well-run litigation. The advantages of making an in-time application (as described by Nugee J inGuidezone Ltd [2014] EWHC 1165 (Ch)), rather than a retrospective application for relief need to be emphasised, as the test in Denton does not apply. Having said that...