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 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.
- Keen Phillips (a firm) -v- Field  EWCA Civ 1524
- Marcan Shipping -v- Kefalas  EWCA Civ 463
- Nelson -v- Circle Thirty Three Housing Trust Ltd  EWCA Civ 106 (relief granted on default in disclosure on application for possession)
- Azeez -v- Momson  EWCA Civ 202 (breach of article 6 if judge does not consider CPR 3.9 criteria).
* Reported on Lawtel this morning.