Stick to the rules

Every litigation solicitor knows of the current culture of compliance, and that relief from the sanction for default will be hard to obtain (Denton v TH White Ltd [2014] EWCA Civ 906).

The master or judge should approach an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness or significance of the default. The second stage is to consider the reason for the default. The third stage is to consider all the circumstances of the case so as to deal with it justly. Furthermore, the litigant and their solicitor have a duty to co-operate with the court and with the other party.

Whether the applicant is seeking relief from an express or an implied sanction, the principles are the same.

The solicitor must consider relevant points of principle to argue. Citation of authority will likely be inappropriate, because the cases usually turn on their particular facts, and this is very much a matter for the discretion of the master or judge.

Procedural default, not substantive merits

Where the defaulter is seeking relief for non-compliance, the issue for the court is the seriousness or significance of the default, not of the substantive case.

The merits and demerits of the substantive issue are strictly irrelevant, and before the substantive trial the prospects of success are necessarily unclear, although the implications of the result of the procedural matter cannot be entirely erased from the picture.

Prejudice

As a matter of justice, the other party should not be subjected to prejudice, such as delay, additional cost, non-receipt of money due, abortive hearings, or the postponement of a final and just decision in the litigation. But a failure by a party to give timely notice of a finding through ignorance or inadvertence might bring no harm to the other party, so there is no prejudice.

Conversely, a refusal to grant relief may be disproportionately prejudicial to the party seeking it. There may be an issue over human rights, such as the right of a homeless person to be housed by the local authority, where delay would not seriously trouble the local authority. Facing striking out for default, the defaulter faces losing everything if they cannot obtain relief, whereas a stay could be overcome in due course. An immigrant may be facing deportation, a draconian consequence. A sanction must be proportionate.

Impecuniosity

The fact that a party seeking relief from sanctions is unrepresented, for example because they cannot afford a solicitor, is no excuse for non-compliance. The litigant in person might be expected to have difficulty with complicated legal matters, but they can reasonably be expected to disclose specified documents within a reasonable specified time.

Heavy workload

Arguing that the time limit was passed because the solicitor has a heavy workload, the office is short staffed, the lay client is difficult, or the solicitor was not put in funds will be seen as virtually hopeless. The skill of the litigating solicitor lies in avoiding just this problem arising.

Ill health

Naturally the master or the judge will look with understanding upon a party afflicted with serious physical or mental health problems, but arrangements will have to be made for moving the process on. The other party cannot be condemned to indefinite or uncertain delay.

Genuine mistake

A genuine mistake leading to non-compliance, especially where no or little prejudice has been suffered by the other party, looks likely to obtain relief, subject perhaps to an appropriate costs order.

Public and private law

The law applies equally to both public and private cases, although a public law case may have an important public interest element properly to be taken into account (e.g. a welfare benefit or housing issue where a government department or a local authority is involved). A public authority has a public duty to collect money owing, though being kept waiting for a little longer by a defaulter with some mitigation may not represent much hardship.

Efficient litigation

Litigation must be conducted efficiently, and that indicates compliance with the rules. The court cannot accept outrageous, egregious, or highly culpable conduct, repeated defaults, failure to make disclosure or to exercise any due diligence, deliberate flouting of the rules, misuse of process, no explanation, mitigation, or expression of regret, or mischievous tactical ploys. An unsatisfactory attitude and conduct, and repeated breaches, will not promote the chances of gaining relief. Given the default, the application for relief must be prompt.

Belated compliance may be better than total non-compliance – for example, if the money was paid the day before the matter came before the master – but will not disguise the seriousness or significance of the default (Thevarajah v Riordan [2015] UKSC 78).

Fraud

Should the defaulter seeking relief allege fraud against the other party, a new dimension of potential significance is introduced, and the court will probably expect the defaulter to start fresh or separate proceedings, so that the allegation may be appropriately investigated.

Alec Samuels is a barrister and former reader at Southampton University