Relief from Sanctions applications continue to take up a disproportionate amount of court time both in the lower Courts and on appeal. It is rare for a week to go by without some aspect of CPR 3.9 and Denton and others v TH White Ltd and another [2014] EWCA Civ 906 (Denton) being the subject of scrutiny. The all-pervasive nature of Denton has led to such applications being made when arguably it was unnecessary or erroneously applied.

In Lufthansa Technik v Panasonic Avionics Corp [2023] EWCA Civ 1273 the Court of Appeal touched on the issue of when s. 3.9 applies, in this occasion in a complicated patent dispute, but stopped short of providing wide reaching guidance to assist practitioners handling litigation.

In the recent case of Yesss (A) Electrical Ltd v Warren [2024] EWCA Civ 14 the Court of Appeal, however, bridged this gap by issuing useful guidance on the application of CPR 3.9 as opposed to the Court’s wider responsibilities contained within the overriding objective (CPR 1.1 and CPR 1.2).

The Claimant alleged that he was injured at work whilst loading a van in the course of his employment with the Defendant. Liability was denied and the matter was issued in October 2019. Having a pleaded claim value of £140,000 the matter was allocated to the Multi Track and progressed to a CMCC. Both parties were given permission to rely on orthopaedic evidence. No other expert evidence was sought by either party despite the Claimant’s Orthopaedic expert recommending that a pain management report may be required. In February 2022, the Claimant applied for permission to rely on reports from both a Psychologist and a Pain Management Expert. Permission for the Pain Management Expert was granted but permission for the Psychologist was denied.

DJ Stewart’s rationale was that a relief from sanctions application was not required and that the matter fell to be dealt with under the Court’s overriding objective. In exercising this discretion, he concluded that although the application was late it was not ‘very late’ in line with the judgment in T (Child) v Imperial College Healthcare Trust [2020] EWHC 1147 (QB) because it had not imperilled the trial date (the trial had been vacated for unrelated reasons).

The Defendant appealed on the basis that the late service of expert evidence was a matter to be considered under CPR 3.9.

HHJ Glen dismissed the appeal concluding that mere lateness itself did not engage CPR 3.9 and that there was a clear distinction ‘between cases where a party has defaulted in respect of a time limit imposed by a rule or order and those where there has been no such default’. A raft of caselaw, relied upon by the Defendant, where CPR 3.9 had been deemed applicable were distinguished on the basis that each had a clear sanction applied by either the CPR or Court directions.

The Defendant appealed again and was given permission on the basis that there was some inconsistencies in caselaw on the issue of relief. The appeal was again dismissed.

The Court of Appeal drew together judgments in recent cases including Lufthansa Technik v Panasonic Avionics Corp, FXF v Ishinryu Karate Association [2023] EWCA Civ 89, Mark v Universal Coatings & Services [2019] 1 WLR 2376 (QB) and Global Energy Horizons Corporation v Robert Gray [2019] EWHC 1132 and provided some clarity concerning these potentially inconsistent judgments.

FXF v Ishinryu Karate Association identified the reasonably uncontroversial assessment that there are three categories of cases [59 – 60].

1. cases where the rule or order expressly provides for the sanction that will apply on non-compliance (e.g. failure to file witness statements on time),
2. cases where the rule does not expressly state the sanction which applies for non-compliance, but permission of the court is needed to proceed (e.g. failure to file a notice of appeal on time), and
3. cases where a further step is taken in consequence of the non-compliance, such as the entry of a default judgment (as in this case) or the striking out of a claim for non-attendance at trial.

Where the various judgments arguably deviate is what treatment each case category should receive and how practitioners are supposed to know what steps are required when faced with procedural situations.

Where there is a clear express sanction (Category i) it follows, upon analysis of the clear wording in CPR 3.9, that a relief from sanctions application is required. Similarly, where a sanction has already been imposed (category iii) the necessity for an application for relief is likely to be clear. Where confusion exists and where most litigation has been seen relates to the concept of an implied sanction (category ii).

In Mark v Universal Coatings & Services the Court attempted to impose a fact sensitive assessment based on the seriousness of the situation in which the ‘defaulting’ party found themselves. This was, however, rejected by the Court of Appeal as being too uncertain. Similarly, the suggestion in Global Energy Horizons Corporation v Robert Gray that the applicability of s3.9 ‘depended on the circumstances of the application’ was rejected on the basis that the Judge was in fact simply exercising his discretion within the confines of the overriding objective.

In response, therefore, the Court of Appeal handed down a simple two-stage assessment of whether or not a Relief from Sanctions application is required.

Stage 1 – identify whether a rule, practice direction or order has been breached. If there is no breach there is no need for relief.

Stage 2 – identify any sanction for that breach, which is expressly provided for in a rule, practice direction or order. If there is no express sanction relief is not required.

The simplicity of this guidance belies the complexity of the issues which practitioners have faced and will undoubtedly continue to face when considering how to proceed procedurally. It should not be seen as the Court relaxing their hold over operational efficiencies and procedural compliance. Similarly it should not be used as an excuse to delay or fail to take reasonable steps in litigation. Although the need for permission may not be classed as a sanction under CPR 3.9 the conduct of the parties and the impact of any application will play heavily on the Court’s mind when exercising its discretion. Denton may not be directly applicable but the ethos which underpins it will undoubtedly continue to apply to most applications before the Courts.

Antonia Ford