Securing relief from sanctions in procedural orders

As new case law enforces the strict regime of compliance within the new civil justice reforms, we re-visit best practice for solicitors where orders are silent and deadlines are missed.

Consider an example such as in Lakatamia Shipping Co Ltd v Nobu Su and others [2014] EWHC 275 (Comm) where an order for disclosure does not provide a specific time of day by which the order is to be complied with.

The Commercial Court Guide (D19.2) provides that, absent specific provision in an order, the latest time for compliance is 4.30pm on the day in question. However, you assume that the deadline will be 5pm. As a result, you offer exchange of disclosure at 4.45pm, at which point the other side's solicitors inform you that this is arguably out of time, and reserve their client's position. You hear nothing further and they take no steps themselves to serve their own list on you.

Urgent remedy

In this situation you should attempt to remedy the position urgently and serve the list on your opponent as soon as possible and ask them to do likewise. The court in Lakatamia held that "the defendant's disclosure was 26 minutes late, although it could have been only around 15 minutes late if the claimant had agreed to exchange. It is a delay measured in minutes and not hours". Mr Justice Hamblen did not, however, specify a cut off.

In addition, an application for relief from sanctions should be made as promptly as possible. The court in Lakatamia said that if the nature of the non-compliance can be considered as trivial, then the court "will usually grant relief provided an application is made promptly".

In this case relief from sanctions was granted. Mr Justice Hamblen said that narrowly missing a deadline was "a circumstance which the Court of Appeal in Mitchell expressly contemplated as being de minimis and usually deserving of relief from sanctions", adding, "that the non-compliance is also trivial is also borne out by its effect. It has caused no prejudice to the claimant, and none is suggested".

Robust approach

However, as ever, putting steps in place to ensure compliance is vital for client confidence. Solicitors should familiarise themselves with any court-specific rules and guides which may set out the particular time of day or manner for compliance with a rule or order. However, as per Mr Justice Hamblen, "in the light of the importance of compliance and the 'robust' approach to relief from sanctions exemplified by the Court of Appeal decision in Mitchell v News Group Newspapers Ltd, it may be preferable for Commercial Court orders to specify the time of day by which an order is to be complied with, notwithstanding D19.2 of the Guide. The present case illustrates the desirability of doing so".

Where possible therefore, the parties should agree and/or ensure that procedural orders are clear as to the time of day and/or manner for compliance with directions. Further, if an opponent fails to comply with an order or misses a deadline, a solicitor should reserve their client's position, yet should ensure they themselves comply with the requirements on them.

Points to consider:

•    Parties should familiarise themselves with any rules and guides which may set out the particular manner for compliance with a rule or order.

•    In situations of non-compliance, attempt to remedy the situation as soon as possible.  

•    Applications for relief should to be made as soon as possible to maximise the prospects of success.

•    If an opponent fails to comply with an order or misses a deadline, a solicitor should reserve their client’s position but should certainly ensure they comply with the requirements on them.  Mr Justice Hamblen in Lakatamia seemed to indicate that the claimant’s decision to withhold its disclosure, notwithstanding the defendant’s non-compliance, weakened its opposition to the application for relief.