In Warner -v- Merrett (QBD Merc 12/6/2014) Judge Mackie QC granted relief from sanctions following a failure to serve documents relating to serve documents relating to additional liabilities at the outset of a detailed costs assessment. The case was briefly reported on Lawtel yesterday. This is based on the Lawtel summary.


The claimant failed to serve documents relating to additional costs liabilities and the insurance premium at the beginning of the assessment process.  The defendant served points of dispute arguing that as result of the omission the success fees and insurance premiums had to be disallowed.  The claimant applied for relief from sanctions.


The judge held that the sanctions imposed by r.44.3B applied to documents that were served late.  The claimant required relief from sanctions.

  • The Mitchell judgment should not be applied like a rule or statute.
  • It was not appropriate to focus intensely and narrowly on the word “trivial”.
  • It was necessary to look at the context and the effect of the breach.
  • The question of triviality had to be seen in the context of they duty to co-operate imposed on the parties in Mercantile Court cases.
  • The consequence of the breach caused inconvenience to the defendant but not the court.
  • There was no duty on the defendant to contact the claimant asking for missing information and they could not be criticised for not seeking information.
  • However the prejudice suffered by the defendant could have been remedied by contacting the claimant.
  • There had been no history of default, breach of court order.
  • The claimant’s solicitors had acted immediately when they  became aware of the omission.
  • In context the breach was trivial or immaterial.
  • Even if that were wrong it was just to grant relief.



One comment

  1. Benjamin Williams · · Reply

    While it will probably be superseded by this week’s events in the Court of Appeal, this will be an interesting judgment when the transcript is available. The judge declined to follow a previous decision of Master Rowley – Long v Value Properties – which has also been blogged about here. The judge went rather further than that the Lawtel summary suggests in saying that solicitors have a duty to cooperate. While the judge made a no personal criticism of the respondents’ solicitor, he did in effect say that prejudice had been deliberately contrived by that solicitor not taking any step to alert the applicant to its oversight. This did have a bearing on his decision to grant relief.

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