Sanctions and relief from sanctions Flashcards
What is the test for relief from sanctions?
The test is set out in Dentons
1. Identify and assess seriousness and significance of failure to comply
2. if the breach is serious or signifiant, consider why default occurred
3. Having considered the reason for the default, the court should then evaluate all circumstances of the case. Giving particular regard to:
a) litigation conducted efficiently and at proportionate cost
b) court must enforce compliance with rules, PD and orders
What are typical sanctions?
Interest
Costs
Striking out a statement of case
What is the general rule for time limits?
The time specified by CPR or court order for a party to do any act may be varied by the written agreement of the parties, unless ruled otherwise
What is the rule for extension of time?
Parties can agree an extension of time by prior written agreement for a maximum of 28 days, provided this does not put at risk any hearing date
What is the consequence of non-compliance with orders imposing sanctions?
If a party fails to comply with a rule, PD or court order, a sanction takes effect unless the party applies for and obtains relief from sanctions
When do the rules regarding relief from sanctions apply?
When the deadline has passed and the application is made after the deadline
When is an application to set aside a default judgment treated as an application for relief from sanctions?
When the defendant is relying on discretionary grounds to set aside judgment in default. The court will apply Denton principles
What will the court do if the case is a specified or unspecified sum in the County Court and a party fails to file a DQ after they failed to do so and court sent them a reminder?
The court will strike out their statement of case
Note - if it was High Curt, the court an strike out a case but can also list the case for CMC
When does the court use strike out?
If the case started in County Court and the party fails to file DQ by the date specified by the court, the court gives warning with a 7-day deadline.
If the party fails to file it again within this deadline = case is stuck out
What is a potential consequence of refusal to participate in ADR?
This can lead to costs sanctions
What happens if a party who ends up winning refused to participate in ADR?
This can lead to costs sanctions, even though they won. The court in this case may reduce the costs they get awarded: deprivation of their costs for unreasonably withdrawing from ADR
When can a party apply for an order to enforce compliance or a sanction?
Where a party fails to comply with a case management direction of the court, the other party can apply for an order to enforce compliance or for a sanction
What is an unless order?
An order to enforce compliance. This gives the party a deadline to comply with the order or be struck out
A key ground for strike out is:
A statement of case discloses no reasonable grounds for bringing or defending a claim
- for example: the party does not have a valid cause of action
Example of an invalid cause of action
Promissory estoppel - is not a cause of action as it is a defence
- this means the defendant could apply for a strike out of a claimant’s case in promissory estoppel
What are potential costs sanctions for a winning party who has not complied with pre-action protocol?
Despite winning, the winning party may not get all the interest they are entitled to on damages and may have to pay some or all of the other party’s costs
- This is the indemnity principle
- The court has discretion - they can sanction a party for a failure to comply with pre-action steps
What is the sanction for a party failing to file its costs budget on time (at least 21 days before hearing)?
The party will only be able to recover the court fees if they win
What is a strike out?
A deletion of written material from a statement of case so it cannot be relied on in proceedings by any party
It focuses on the statement of case and covers cases which do not amount to a legally recognisable claim or defence
What are the grounds for strike out?
a) statement of case discloses no reasonable ground for bringing or defending the claim
b) statement of case s abuse of the court’s process or likely to disrupt the just disposal of proceedings
c) there has been a failure to comply with a rule, PD or court order
What is the most severe sanction for a failure to comply with directions?
Strike out of a party’s statement of case: striking out means the case can no longer continue and the other side wins
What can a party do if the other party has failed to comply with a direction issued by the court or a court order?
They can apply for an ‘unless order’ which is an order from the court to comply with the direction by a specified time or face sanction
Can a court order a strike out on its own initiative?
Yes, a judge may exercise powers of their own initiative without giving the parties an opportunity to make representations, provided there are no reasonable grounds for bringing the claim or it is an abuse of the court’s process
What is the difference between additional claims seeking only a contribution/indemnity and additional claims for damages?
A claim for contribution or indemnity stands or falls with the main claim, as if the claimant is unsuccessful, there is no need for a contribution or indemnity.
A claim for damages is separate and can continue
What should a solicitor do if they are unable to meet the date for filing a pre-trial checklist?
Apply to the court for a variation of the date for filing the pre-trial checklist
When is a wasted costs order used by the court and who is liable to pay it?
When there is a breach at the fault of the legal representative. The legal representative has to pay it
Example:
- if the solicitor fails to make a deadline for serving witness statements or a legal representative fails to attend a CMC
Solicitor’s fault = wasted costs order = they pay
What is a Non-party Costs Order?
NPCOs are used by the winning party against a third party who has funded the loser’s case because the loser could not pay themselves. The winner will make the NPCO application to get their costs paid
- NPCOs are down to the court’s discretion ‘which must be exercised justly’
- Third party must be more than just a mere funder - they must also benefit from the claim in some way and have some level of control over proceedings
What is the consequence for non-compliance with a conditional order?
A claim is automatically dismissed for non-compliance with a conditional order
Although the party can apply for relief from sanction
