A string of recent decisions in the High Court and Court of Appeal illustrate the extent to which Judges are prepared to depart from the hard-line approach adopted in Andrew Mitchell  v News Group Newspapers Ltd [2013] EWCA Civ 1537 (“Mitchell”).

Circle Thirty Three Housing Trust Ltd v Nelson and others [2014] EWCA Civ 106

Circle Thirty Three Housing Trust Ltd brought a claim for possession against its tenant, Mrs Margaret Nelson (“Mrs Nelson”) on grounds that, inter alia, Mrs Nelson had breached the terms of her tenancy agreement by failing to use her let property as her principal home. District Judge Manners ordered Mrs Nelson to provide, among other documents, all bank and building society statements during the relevant time. The deadline of 28 January 2013 imposed by District Judge Manners passed without Mrs Nelson disclosing all the necessary paperwork. In view of Mrs Nelson’s breach, His Honour Justice Saggerson made an Unless Order that, unless Mrs Nelson provided all credit card statements by 4pm on 27 March 2013, her Defence would be struck out. Some, but not all of the documents, were provided by Mrs Nelson prior to the 27 March 2013 deadline. Consequently, Judge Collender gave effect to the Unless Order and granted possession. Mrs Nelson appealed the decision.
Fresh evidence produced by Mrs Nelson on appeal confirmed that she had contacted her bank no less than five times to obtain copies of her credit card statements prior to the deadline. In view of this new evidence, the Court of Appeal considered the failure to comply with the Unless Order to lie with Mrs Nelson’s bank and therefore granted her relief from sanctions and restored her Defence.

Summit Asset Management Ltd v Coates (unreported)

This case concerned a claim brought by Summit Asset Management Ltd against Mr Andrew Clive Coates (“Mr Coates”) for the recovery of approximately half a million pounds plus interest. Following Mr Coates’ failure to file his Defence on time, Master McCloud made an Unless Order on 31 October 2013 giving Mr Coates until 15 November 2013 to comply.

Owing to an oversight of the Court, the Unless Order was not, however, sealed until 8 November 2013 and was not served until 12 November 2013. This left Mr Coates just three days to lodge his Defence. Crucially, Mr Coates emailed the Court asking for more time prior to the expiry of the Unless Order. Master McCloud found there to be “procedural unfairness” in the Court giving Mr Coates just three days to lodge his Defence and, whilst noting that this was “not a trivial breach”, Master McCloud was satisfied with Mr Coates’ attempts to seek an extension of time prior to the deadline. Accordingly, Master McCloud granted Mr Coates relief from sanctions and allowed him a fourteen day extension to comply.

Chartwell Estate Agents Ltd v Fergies Properties SA and another [2014] EWHC 438

A dispute between parties in this case arose in relation to the payment of commission under an agency agreement. Chartwell Estate Agents Ltd (“Chartwell”) contended that an extension of time would be appropriate since the defendant, Fergies Properties SA (“Fergies”), had refused to provide disclosure, leaving Chartwell unable to finalise its witness evidence. Fergies had refused Chartwell’s requests for disclosure on the grounds that the disclosure requested was irrelevant. In response, Chartwell had written to Fergies prior to the exchange deadline with notice that it would not be in a position to exchange witness statements on time. Fergies position was that in light of Chartwell’s notice, it had itself not finalised its own witness statements, though it would have been able to comply. Mr Justice Globe refused to consider Chartwell’s default in isolation. Though Mr Justice Globe did not consider the non-compliance of both parties to be trivial, he found the parties to be in a position to comply with exchange of witness evidence within 7 days, whilst maintaining the trial window already set. Mr Justice Globe therefore granted relief from sanctions and allowed both sides an extension of time to exchange witness statements.

Vivek Rattan v. UBS AG, London Branch [2014] EWHC 665 (Comm)

The decision concerns a claimant’s application under CPR 3.14 in relation to the filing of a costs budget by UBS AG, London Branch (“UBS”). Parties in this case agreed in correspondence that UBS would file its costs budget by 28 February 2014. Vivek Rattan (“Rattan”) argued that in filing the costs budget on 28 February 2014 and not the day before, UBS was in breach of CPR 3.13. Mr Justice Males was very disapproving of Rattan bringing the application, describing it as “manifest nonsense” and noting that the “Commercial Court will firmly discourage the taking of futile and time wasting procedural points”. Mr Justice Males noted that UBS’s solicitors understanding of the position was entirely reasonable.

Conclusion

The above four cases provide early guidance as to the extent to which the Courts are prepared to deviate from Mitchell and, where appropriate, grant relief from sanctions for breaches which are not necessarily trivial. In view of the plethora of decisions refusing relief from sanctions, however, it is doubtful that the above signifies a relaxation of Mitchell. Whether relief from sanctions is available will ultimately depend on the particular facts of the case.
For further information, please contact Georgina Squire or the Partner with whom you usually deal.