Reports of decisions in relation to procedure, particularly relief from sanctions, are always welcome. I am grateful to Simon Young of Kings Chambers for his report of the case of Cook -v- Danter. It is a case where a circuit judge allowed an appeal and granted relief from sanctions following a failure by a claimant to comply with a court order and notify the court that an existing schedule of damages was to be relied upon.
“TRACEY COOK v. (1) DANTER, (2) BLASEMERE LTD, (3) JD WETHERSPPON PLC
The claim arises out of an alleged tripping accident at a car park in September 2009. Proceedings were issued in May 2012 with the Claimant serving a schedule of loss (totalling under £600) dated August 2011. There were multiple Defendants because of a dispute as to responsibility for the area where the accident occurred.
Following a telephone hearing on 2 September 2013, the Court made an Order in the following terms:
“Upon it appearing to the Court that there has been almost total disregard for the timetable previously set:
5(a) By 4pm on 6 January 2014 the Claimant must send an up to date schedule of loss to the other parties;
- Given the failure to comply with previous directions if any party fails to comply with the directions above within 7 days of the prescribed date their claim/defence shall be struck out without further order.”
The Claimant failed to file an updated schedule of loss or to confirm that she intended to rely on the original schedule.
On 14 January 2014 D1/D2 wrote to the Court seeking judgment on the basis that the claim had been struck out automatically for non-compliance with para. 5(a) of the Order.
On 15 January 2014 Claimant’s solicitors wrote to the Court saying that she did not intend to file an updated schedule of loss, that she wished to rely on the original schedule and thereby sought to dispense with the requirement in the Order for an updated schedule.
On 16 January 2014 the Claimant applied to vary the Order at para. 5(a) to remove the need for an updated schedule and to seek relief from any sanction for non-compliance.
The Defendants subsequently filed counter schedules in response to the schedule, all parties filed PTCs and the matter was due to be listed in a trial window in March 2014 if relief was given.
On 8 February 2014 at a telephone hearing, the District Judge refused the Claimant’s application under CPR 3.9 and held the claim struck out on the bases that: (a) the Order was in clear and unambiguous terms which required an updated schedule of loss to be filed, (b) that schedules of loss were important documents and the Defendants were entitled to know the case against them, (c) that compliance with the Order was not difficult, (d) that the Claimant’s solicitor could have applied to vary or extend time in the Order prior to the date for compliance but did not do so and (e) that Court Orders giving parties a final chance were just that. He held that the breach was not trivial and that relief should be refused.
The Claimant appealed. The Defendants opposed the appeal on the basis that the refusal of relief was an exercise of discretion that could not be interfered with and that it was nevertheless appropriate for relief to be refused given the nature of the Order breached in accordance with Mitchell.
HHJ Pearce-Higgins QC allowed the Claimant’s appeal on the following grounds:
(1) In considering whether the breach was trivial for Mitchell purposes, the Court had to consider the nature and effect of the breach on the parties and the Court. He approved the comments by Hamblen J at para. 18 of the decision in Lakatamia Shipping that:
“The Claimant submits that the non-compliance cannot be characterised as trivial in light of the history of earlier defaults by the Defendants. However, what matters is whether the non-compliance which resulted in the sanction is trivial and in my judgment that involves a consideration of the default in question, not other defaults at other times. The history of default may be a relevant general circumstance to take into account but it does not affect the characterisation of the relevant non-compliance or metamorphose a trivial default into a serious default.”
(2) That, although not of primary relevance, the question of whether the sanction imposed was a proportionate response to the breach committed was a relevant factor in dealing with the application justly.
(3) That, by focussing on the nature of the Order breached, rather than the nature and effect of the breach itself, and by failing to consider proportionality at all, the District Judge failed to take into account relevant considerations and thereby fell into error, enabling the Appeal Court to consider the matter;
(4) That the breach itself was trivial in that all the Claimant had failed to do was to confirm that she wished to rely on her original schedule by 13 January 2014 and there was no prejudice to the Defendants in finding out 2 days later than they should have done that the original schedule was being relied upon. That the Defendants were in fact able to file counter schedules by 20 January 2014 reaffirmed this;
(5) That even if the breach was not trivial, relief should nevertheless be granted because this was a simple error by the Claimant’s solicitor in failing to write confirmatory letters that did not change the case that the Defendants were asked to meet and did not prejudice the trial window;
(6) That the striking out of a claim for failing to confirm that the original schedule was not to be updated was a disproportionate sanction having regard to the breach;
(7) That the parties would have been able to proceed to trial in the original trial window if relief had been given.”