RELIEF FROM SANCTIONS: LATE SERVICE OF NOTICE OF FUNDING

Relief from sanctions following late service of the notice of funding was granted by Mr Justice Simon in Jackson -v- Thompson Solicitors (& others) [2015] EWHC 549 (QB).

THE CASE

The claimant had failed in an action against multiple defendants and was ordered to pay the costs. One of the defendants (Lord Prescott) entered into a CFA with his solicitors. Notice of funding was given on the 3rd May 2012 which was late (either three or seven weeks late).

The claimant took the point on assessment and also took the point that no formal notice had been given of the CFA between Lord Prescott and senior and junior counsel, although this had been notification in correspondence the relevant dates had not been given.

APPLYING THE DENTON TEST: THE SOLICITOR’S BREACH

The judge found that:

  1. The delay in serving notification of the CFA was neither serious or significant. It had no impact on the conduct of litigation, nor had it impacted on other court users. The claimant raised no objection to the notice when it was sent and had not indicated that he was prejudiced by the delay.
  2. The court was concerned with the seriousness and significance of the breach and the claimant had not been able to point to any material prejudice caused by the delay.
  3. The reason for the breach was oversight.
  4. The claimant argued that the solicitors for Lord Prescott had delayed making the application. If they had made it promptly then the stricter principles in Mitchell would have applied and relief would have been granted and the defendant should not not be allowed to take advantage of their own delay.
  5. The judge rejected this submission. The law is always presumed to have been as stated in the latest decision. In any event in Denton the court stated that Mitchell had been misunderstood.
  6. Looking at the matter, including issues of proportionality and compliance, relief from sanctions should be granted.

APPLYING THE DENTON TEST: COUNSEL’S BREACH

  1. The position here was that that notice had been given that a CFA had been entered into by junior Counsel and it was intended that a enter into a CFA with Leading Counsel.  This did not lead to any response from the solicitor.
  2. The judge required that details as to the dates of the CFA be provided by way of witness statement. There was still a breach in relation to notification of the date of the CFA.
  3. The judge, again, “by a very fine measure” granted relief from sanctions. This was a point that was taken late in the day. They were matters which were not thought to give rise to any issues at all until just before the hearing.

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One comment

  1. domthedrafty · · Reply

    I’m not sure why D needed relief in respect of Counsel’s CFA; the requirement to give notice of Counsel’s CFA is governed by CPD 19.3 (as it then was) which continues to apply due to CPR 48.1 (1).
    CPD 19.3 provided that notification of Counsel’s CFA was not required where notice was given of a solicitors CFA which it was here, albeit late.

    19.3

    (2) Further notification need not be provided where a party has already given notice:
    (a) that he has entered into a conditional fee agreement with a legal representative and during the currency of that agreement either of them enters into another such agreement with an additional legal representative;

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