As the effects of Andrew Mitchell v News Group Newspapers Ltd  EWCA Civ 1537 (“Mitchell”) continue to be debated, the Courts have provided further clarification as to the circumstances in which relief from sanctions may be available.
In Denton v T H White Ltd (23 December 2013) (unreported) HHJ Roderick Denyer QC granted the claimant leave to serve additional evidence despite this necessitating the relisting of a ten day trial. In reaching his decision, HHJ Roderick Denyer QC recognised that developments in the course of litigation may be a good reason for granting relief from sanctions. Applying the Court of Appeal’s decision in Mitchell, HHJ Roderick Denyer QC concluded that, if the additional evidence was not allowed it would be a “ridiculous trial”. The claimant was therefore granted relief, though HHJ Roderick Denyer QC made it clear that there would be costs consequences for the claimant.
Similar concerns as to whether there could be a sensible trial without additional evidence arose in Bank of Ireland v Donaldsons LLP  EWHC 1957 (Ch). The claimant in this case alleged that the defendant had negligently overvalued a property for lending purposes. The claimant’s expert did not provide a view on the current market value of the property since the claimant had expected that the property would have sold by the time of trial. The claimant therefore sought to adduce a supplemental expert report after the deadline for exchange of expert evidence. Newey J found that the additional evidence could be dealt with satisfactorily in time for the trial and that the trial would be “rather strange” without it.
Though the above may appear to suggest that the Courts are adopting a more relaxed approach to Mitchell, it should be noted that in both instances, the original orders for the service of evidence had been complied with.
In Americhem Europe Ltd v Rakem Ltd  EWHC 1881 (TCC), the proceedings between parties arose from the supply by the defendant to the claimant of an incorrect chemical. The Court was asked to consider whether a Precedent H costs budget which had not been signed in compliance with Practice Direction 3E.6 warranted court sanctions. The defendant’s Precedent H costs budget was signed by a costs draftsman, as opposed to a ‘senior legal representative’ of the relevant party, as required by Practice Direction 3E.6. The sanction for failing to file a Precedent H costs budget under the post Jackson regime is that the defaulting party would be deemed to have submitted a budget only in respect of the applicable court fees. For Stuart-Smith J, however, there was nothing to impede the “normal constructive discussions on figures that would have been open to the parties” if the defendant’s cost budget had been fully compliant. Stuart-Smith J therefore concluded that the signing of the defendant’s costs budget was an “irregularity” but that this did not render the budget a “nullity” which justified the draconian sanction under CPR 3.14.
In Patterson (The Trustee in Bankruptcy of George Spencer) v Spencer and others  EWHC 1878 (Ch), the Court was asked to consider an application for relief from sanctions brought by the defendant further to its failure to comply with an Unless Order requiring a transcript of a judgment to be filed at Court. On the facts, Deputy Judge Henry Carr QC refused the defendant’s application for relief from sanctions and, as a consequence of which, the defendant’s appeal was struck out. Material to his decision was the fact that the defendant had been afforded numerous indulgences by the Court in the past and that the default in question was part of a “course of conduct” which had prevented the litigation being conducted efficiently and at proportionate cost in accordance with CPR 3.9.
The above cases provide further clarification as to the circumstances in which a litigant may be granted or refused relief from sanctions.
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