Every case in relation to relief from sanctions is being examined carefully after 1st April.
The case of IAN ALAN WYCHE v CAREFORCE GROUP PLC (2013)QBD (Comm) 25/07/2013 is going to be of interest. The case is not yet fully reported and I am reliant upon summaries. I will post the full case, and a more detailed discussion, when it becomes available.
The Defendant had been subject to an unless order in relation to disclosure. This was an e-disclosure order. Disclosure had taken place but the Defendant had inadvertently failed to disclose documents.
The error was brought to the Defendant’s attention and it rectified the error. The Defendant had also failed to carry out one of the keyword searches and these documents were disclosed late, together with another bundle of documents which had been incorrectly categorised as privileged.
The Defendant’s application for relief from sanctions was granted. The summary of the case I have states that:
- The judge did not accept that it did not matter that the mistakes were inadvertent and not deliberate. The effect of the mistake was the same; however the court was concerned with questions of relief.
- The fact that a mistake was inadvertent was not a trump card. However it was a relevant consideration. Where a failure had been deliberate this weighed heavily against a party seeking relief.
- The behaviour of the Defendant after the mistakes were identified was a relevant factor. The Defendant’s response had been immediately and prompt.
- The combination of delay and not compliance was not unacceptable. However that did not mean that the court would not make any allowance for human error.
- The court was not a martinet. Nor was it an automaton. It did not blindly expect every order to be followed to the letter, making no allowance for human error.
- There were no grounds to criticise the Defendant’s honesty and integrity. None of the failures had made the trial date impossible.
- The granting of relief was consistent with the principles in Fred Perry Holdings Ltd –v- Brands Plaza Trading Ltd  EWCA Civ 22http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/224.html&query=fred+and+perry+and+brands+and+plaza&method=boolean4 . The breaches were unintentional and no more than the temporary.
- The Defendant’s application to strike out the defence should not have been made.
I stress that I am working from a summary of the case and not a transcript. I will post details of the full case when it becomes available. However it appears that breach of a peremptory order is not fatal. Honesty about the breach and prompt action to rectify can be extremely important factors.