The Court of Appeal’s ruling today in Denton & Ors v TH White Ltd & Anor should “make civil litigation less adversarial and more co-operative,” the Law Society has predicted. In my estimation at least those caught up in applications for relief of sanctions will be pleased with the new three stage test.
In a joint judgement the Master of the Rolls (MR) and Lord Justice Vos said that the guidance given in Mitchell remained “substantially sound”. But “in view of the way in which it has been interpreted”, they restated the approach that should be applied in more detail.
The MR and Lord Justice Vos said judges addressing an application for relief from sanctions should go through three stages.
- “The first stage is to identify and assess the seriousness and significance of the ‘failure to comply with any rule, practice direction or court order’ which engages rule 3.9(1) [of the CPR]. If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages,” they said.
- “The second stage is to consider why the default occurred.
- The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application….’.”
The MR and Lord Justice Vos said they were concerned that some judges were adopting an unreasonable approach to rule 3.9(1). adding “Two of them evidence an unduly draconian approach and the third evidences an unduly relaxed approach to compliance which the Jackson reforms were intended to discourage.”
The Law Society (which intervened in the Denton case) says the Mitchell ruling had had a “significantly detrimental” effect on the conduct of civil litigation as the judgment’s strict application of case management rules had led to “a raft of satellite litigation” that had “clogged up the courts”.
I still see a potential issue with the term “all” the circumstances but hope that this judgement will speed up the process end of litigation – for those stuck in the civil court mess that is.
Citation: Denton & Ors v TH White Ltd & Anor  EWCA Civ 906