RELIEF FROM SANCTIONS CAN BE HEARD WITHOUT A FORMAL APPLICATION: CUTLER -V- BARNET

In Cutler -v- Barnet (QBD 31/10/14)* Supperstone J held that an application for relief from sanctions could be heard even if it were not made formally in writing.

THE CASE

The defendant was resisting a claim for possession. She had failed to comply with a peremptory order.  The judge found that the disclosure given under an order was incomplete and the order was breaches.

THE  ABSENCE OF A FORMAL APPLICATION FOR RELIEF FROM SANCTIONS

The defendant made an application for relief from sanctions. The judge found that an application had to be made formally under CPR Part 23. He had no power to consider the application and no power to grant relief.

FINDING ON APPEAL

  • The absence of a formal application was not conclusive.
  • At the hearing the defendant made an oral application supported by a solicitor’s statement.
  • Neither CPR 3.8 or 3.9 required that an application for relief be made in writing.
  • The judge had power to consider the application and could have granted relief if he considered it appropriate to do so.
  • The older authorities remained good law.
  • Indeed the court could grant relief from sanctions on its own motion if it considered it appropriate.
  • The judge should have balanced the 3.9 factors with proportionality and the overriding objective.
  • In failing to do that debarring the defendant had been a breach of article 6.

The appeal was allowed.

THE OLDER AUTHORITIES (THAT REMAIN GOOD LAW)

On the issue of no requirement for a formal application for relief from sanctions.

OTHER CASES

* Reported on Lawtel this morning.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: