No Relief from Sanctions Civil Procedure Rule 3.9 – post Mitchell an update

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Generous

Clear example of lower courts protecting their judicial discretion and not towing the line (application to extend time after it passed):

Fair

Claim dismissed as sanction for delay (15 year delay resulting in compromise of evidence and likely unfair trial) – would not have been any different under old CPR 3.9

Notice of Funding by letter and not Form N251 is a trivial breach; relief provided from the date notice rectified

Claim struck out for non-payment of court fees per CPR 3.7; relief provided

  • [Watch this space for a reference; it is my own ongoing case]

Towing the Line

Application to vacate trial date dismissed (author of misfortune in delaying self-help; court not coming to the aid of a LiP)

Failing to file a witness statement!  A friendly consent order re-setting the timetable overridden by the court of its own initiative

Application to extend time to file an appeal notice – no specific sanction listed but Rule 3.9 applies

Prejudice is no longer a reason to allow or disallow relief

Application to extend time to serve expert evidence not allowed – draconian consequences are a fact of life post-Jackson and the importance of the original order not being in an “unless order” form is of little significance – critically, what would otherwise be a good reason was trumped by the lack of reason for the delayed application for relief

Failure to serve a Notice of Funding is not trivial; relief not provided

Relationship between Rule 3.9 and 3.1(7) (vary court order)

Re-consideration of an order made under r3.9 will usually be under 3.1(7) and compliance following sanction coming into effect following an unless order does not amount to a material change

Relationship between Rule 3.9 and 3.3 (Court’s power to make orders of its own initiative)

Relationship between Rule 3.9 and 52.3(5) (Seeking permission to appeal at hearing after paper application refused)

CFA not served re Detailed Assessment proceedings resulting in uplift not being recoverable

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If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

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