Relief from sanctions: a tougher approach?

T here are few things more frustrating for litigators than a party on the other side failing to comply with a procedural requirement or the terms of a court order. And most frustrating of all, perhaps, is the uncertainty as to how to respond. The traditional approach of the courts was to excuse non-compliance if any prejudice caused to the other party was capable of being remedied, usually by an order for costs. As such, practitioners were required to consider whether it was in the best interests of their clients when faced with a breach from the other side, to bring this to the attention of the court. In light of the court’s approach, the tendency for practitioners was to forgive such breaches and agree extensions of time for compliance. The court’s approach to non-compliance has changed following the Jackson reforms in 2013, which amended rule 3.9 of the Civil Procedure Rules (CPR) and the case law that followed. The effect of CPR3.9 requires the court to consider all the circumstances of the case, so as to enable it to deal justly with the application. The reference to dealing with the application “justly” is a reference back to the definition of the overriding objective in CPR1.1, with a focus on ensuring that the parties are on an equal footing, that a case is dealt with expeditiously and fairly; and enforcing compliance with rules, practice directions and orders. APPROPRIATE TEST The appropriate test when considering an application for relief from sanctions is set out in Denton v White [2014] 1 WLR 3296, which established a three-stage approach for the courts to adopt when considering an application, namely:- a Was the breach serious or significant? b What was the reason for default? c What is the appropriate order in all the circumstances of the case? Despite the clearer guidance on the issue and the shift in the focus of the court towards imposing sanctions for non-compliance, matters will always be case sensitive and practitioners must still weigh up a number of factors when deciding how to proceed in the face of a breach or non-compliance. So, how should litigators respond to applications for relief from sanctions, how should the Denton test be applied, and how different is non-compliance by litigants in person? SERIOUS OR SIGNIFICANT BREACH When determining whether a breach is serious or significant, it is important to give consideration to the impact of the breach and the prejudice suffered by the other party arising from the breach. In the recent High Court case of Stevanovic v Knyvett & Ors [2019] EWHC 214 (Fam), the claimant failed to provide responses to a request for further information pursuant to CPR18 (RRFI) and to provide specific disclosure pursuant to CPR31. The claimant failed to provide the RRFI and disclosure by the date set and thereafter failed to comply with the deadline set in a court order. At the time of the breach the final hearing of the claim was only two months away and the defendants argued that the claimant’s failure to comply had imperiled the fair hearing of the claim. The court agreed and the claimant’s claim was struck out. The claimant applied for relief from sanctions, which was refused. Within her judgment, Lieven J noted the claimant’s failure to comply whatsoever with the request for further information, despite the fact that the information requested ought to have been within the claimant’s control and possession, and the absence of any justifiable reason for non-compliance. REASON FOR DEFAULT If there is a serious or significant breach, an application for relief is unlikely to be successful in the absence of a justifiable reason for non-compliance. Any such reason should be supported by evidence and the other party notified in correspondence at the earliest possible stage. An added layer of difficulty arises when the non-complying party is unrepresented. Traditionally, the courts have adopted a more lenient approach towards breaches of court order and failures to comply with procedural requirements when committed by litigants in person. As such, it is not uncommon for practitioners to adopt a more accommodating approach to breaches committed by an opponent acting as a litigant in person. Acting as a litigant in person is not always a matter of choice for a party and some litigants may have no alternative but to represent themselves. However, there are certain circumstances where a party’s status as a litigant in person can be considered irrelevant as a matter of fact; for instance where the terms of an order which has been breached were clear and there is no question that the litigant in person would have failed to understand the effect of the breach. Following the comments of Lord Sumption in the Supreme Court’s decision in Barton v Wright Hassall LLP [2018] 1 WLR 1119, a party’s status as a litigant in person is also seemingly irrelevant as a matter of law. Turning to the reasons for the party’s failure to comply with service requirements, Lord Sumption emphasised that while a lack of representation will often justify allowances in making case management decisions and in conducting hearings, “it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court…the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce the rules of court against him.” Lord Sumption’s approach is supported by the comments of LJ Moore-Bick in Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633, where he commented “in the modern world, inability to pay for legal representation cannot be regarded as a good reason for delay…being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the CPR or, I would add, court orders.” Recent developments in the case authorities suggest that in considering the appropriate order to make in all the circumstances of the case, the court will not apply a lower standard of compliance with rules or orders of the court to a litigant in person, notwithstanding a party’s financial limitations in instructing representation. APPROPRIATE ORDER The third limb of the Denton test is casesensitive and in determining which order is appropriate in all the circumstances of the case, the court will give consideration to the seriousness or significance of the breach and to the reason for non-compliance. A good example of ‘other relevant circumstances’ will be the historical conduct of the parties throughout the proceedings and whether the non-complying party have raised any concerns with compliance at an early stage. Interestingly, in Stevanovic, Lieven J further pointed to the pattern of conduct of the claimant throughout the litigation, which in her mind presented a real risk that if relief were granted, the trial would not be able to proceed. OVERRIDING OBJECTIVE Notwithstanding the fact that a party is acting as a litigant in person, the case law suggests that the courts are prepared to adopt a more robust approach in dealing with non-compliance by a party in litigation. This approach is more consistent with the overriding objective, requiring the courts to deal with cases expeditiously and to enforce compliance with rules, practice directions and orders. Practitioners should consider the impact of the breach, the prejudice caused to the proceedings and its impact on the ability for a fair hearing of the claim. It also appears that the courts are likely to adopt a more robust approach when dealing with non-compliance where this is indicative of a pattern of conduct of a party throughout the proceedings, even if the non-complying party is a litigant in person.