Sanctions and Applying for Relief from Sanctions

Question 1

what is a sanction and how are they imposed?

Answer 1

if a party fails to comply with a court order or CPR provision imposing a sanction, they are penalised by a sanction

can be imposed by:
- court = e.g., reducing/ increasing interest payable to C, striking out a SoC, or ordering D to pay costs on indemnity basis
- CPR = e.g., failure to disclose an expert report prevents a party from relying on it at trial; failure to file costs budget is treated as only filing costs budget on applicable court fees

Question 2

can parties vary the time limit to do an action required by CPR, PD, or a court order so that a sanction will not apply?

Answer 2

yes - parties can vary time limits by written agreement for an extension of only up to 28 days provided it does not put a hearing date at risk - but this must be done before the deadline

(but this does not apply to varying the date of a CMC or hearings)

Question 3

what can a party do if a sanction is imposed on it for failure to comply with a rule, PD, or court order?

Answer 3

the party can apply to the court for relief from sanctions (which must be supported by evidence)

Question 4

what approach does the court adopt when considering whether to grant relief from sanctions?

Answer 4

the denton v white approach

Question 5

what is the first consideration of the Denton Approach?

Answer 5

identify and assess the seriousness and significance of the failure to comply with CPR, PD, or order

• test = whether the breach imperilled a future hearing date or otherwise disrupted the conduct of litigation
• does not involve considering parties’ general conduct
• the court will grant relief over minor breaches (e.g., 2 days late in filing WS)

Question 6

what is the second consideration of the Denton Approach?

Answer 6

why did the breach occur?

Question 7

what is the third consideration of the Denton Approach?

Answer 7

evaluate all the circumstances (including parties’ conduct) to ensure the matter is dealt with justly and give weight to requirements under CPR 3.9:
- litigation must be conducted efficiently and at a proportionate cost (overriding objective)
- the court must enforce compliance with the rules, PD, and court orders = e.g., if parties complied with pre-action protocols / PD on pre-action conduct

Question 8

if a party knows it will not be able to meet a future deadline, can it apply for relief from sanctions before the deadline?

Answer 8

no - relief from sanctions is only applied for after the breach occured

instead, an in-time application to extend the time should be made before the deadline