It is now just over 18 months since the Denton decision. Cases in relation to relief from sanction are still being reported regularly. It is clear that default remains a problem and an issue within the civil courts. Further it is equally clear that the Denton principles do not represent a “soft touch”. Applications for relief from sanctions are regularly being refused.
Here I want to look at some practical matters which can help a party seeking relief. This is guidance on the most prudent steps to take but it should be made clear that there are no easy options. What is needed, for the most part is speed, candour and a determination to put matters right. Even after all those are applied there is no guarantee at all that relief will be granted. The only safe option is, as always, not to be in breach in the first place.
We are here considering breaches in which the court is called upon to consider the entire discretion, not the relatively minor breaches where parties are usually expected to agree.
1. IF YOU ARE MAKING AN APPLICATION FOR RELIEF MAKE IT AT ONCE
The speed with which an application is made is a factor that the court can take into account when considering the discretion.
- Speed here is probably best measured in hours, days at the most. If it is measured in weeks then the writing is probably already on the wall.
“I also have in mind, although this is a point of more minor weight, that there was a delay which I regard as excessive in making this application to seek relief from sanctions. It was a week after Flaux J’s order and almost two weeks after the deadline had expired.” Popplewell J Sinclair -V- Dorsey & Whitney (Europe) LLP  EWHC 3888 (Comm)
2. MAKE THE APPLICATION PROPERLY AND GIVE IT A REALISTIC TIME ESTIMATE
This is a matter of judgment. However if the application is going to be contested then the application is rarely going to be shorter than an hour. If the time estimate is 10 minutes and two advocates turn up then, in extreme cases, the application itself may be struck out. Certainly there will be an adjournment at someone’s expense (usually the applicants). However:
- A respondent owes a duty to the court. If it is clear that the time estimate is inadequate then it is wise to point this out to the applicant, and the court, at the earliest opportunity.
- If (as sometimes happens) the application is consented to then, again, the parties should let the court know at the earliest opportunity.
3. THE EVIDENCE IN SUPPORT SHOULD BE AN EXPLANATION AND NOT AN EXPOSITION
Many, many, many witness statements in support of (and in opposition to) an application for relief take the opportunity to provide the court with huge chunks of the Court of Appeal judgment in Rastin. Sometimes chunks from Mitchell and earlier as well for good measure.
1. Most judges are now familiar with the Denton principles. Arguing points of law in a witness statement add to the time and expense.
2. The fact that someone can operate the cut and paste feature to produce lengthy “statements” is rarely synonymous with legal erudition.
3. Keep the statement as short as possible. Explain the relevant background to the matter; explain (and be totally honest) about why the breach occurred. Explain what has been done to remedy the situation.
4. EVERY SINGLE THING SHOULD BE PERFECT, JUST PERFECT
An application is not helping their cause if witness statements are inadequate, pages missing, exhibits unmarked and bundles not lodged, or lodged in time. These may appear to be minor matters (they are not). An applicant seeking relief from sanctions needs all the help they can get.
5. PUT THE BREACH RIGHT BEFORE THE HEARING
Any default is going to be compounded if it is not put right before the hearing. The fact that a party remains in default at the date of the hearing is likely to be a major, if not determinative, factor.
” Further, even now, some eight weeks after the extended deadline, the claimants are still not offering security which is satisfactory. “
(Mr Justice Popplewell in Sinclair -v- Dorsey & Whitney  EWHC 3888 (Comm).)
6. OFFER A PLAN OF ACTION WILL WHICH IS POSITIVE, ECONOMIC, AND PROGRESSES THE CASE
It is often forgotten that the amended CPR 3.9 and the Denton criteria arise in the context of a situation where judges are under a legal duty to manage cases in accordance with the overriding objective (CPR 1.2 & 1.4) and the parties are required to help the court to further the overriding objective (1.3). It can help a party in default if it has suggestions (including draft directions) which put will put the case back on an appropriate course.
7. BUNDLES, SKELETONS AND SUBMISSIONS SHOULD BE LODGED AT COURT WELL AHEAD OF THE DATE OF THE HEARING
Which involves (coincidentally) instructing your advocate well ahead of the date.
8. IF AT ALL POSSIBLE THE PERSON RESPONSIBLE FOR THE DEFAULT SHOULD ATTEND THE HEARING (EVEN IF THEY ARE NOT DOING THE ADVOCACY).
I am not recommending this as a form of shaming or public contrition. It is a matter of utility. It is surprising how often matters come up at a hearing for relief from sanctions which require clarification. Having the relevant person present, together with the file, can speed up time, and ease the application greatly. There are matters that can be omitted from the fullest of instructions. This helps both in relation to past conduct and also the proposed directions/future management of the case.
9. DO WHATEVER THE COURT ORDERS AT ONCE: DON’T WAIT
If relief from sanctions is granted then get on with the case with speed and diligence. Whatever happens do not allow any further breaches to occur. I have been to several hearings where there was a second application for relief from sanctions. Things do not, generally, turn out well for applicants.
10.WHATEVER HAPPENS LEARN FROM THE EXPERIENCE (AS AN INDIVIDUAL AND AS A FIRM)
It is tempting (and understandable) to put a stressful (and often expensive) experience behind you. However those incidents (or that inactivity) that lead to the need for relief from sanctions are often warning signs that issues need to be addressed. Even if relief is not granted in that particular case the experience can, and should, be used to ensure that it does not happen again.