REUTERS | Amr Abdallah Dalsh

Court’s refusal to grant relief from sanctions: the practical implications of Gladwin v Bogescu

Gladwin v Bogescu is a low value road traffic accident claim. It recently became a case of interest when the High Court allowed the defendant’s appeal against the decision of the lower court to grant relief from sanctions for late service of witness evidence.

After serving the witness statement seven weeks late, the claimant’s solicitors applied for relief from sanctions, permission to give oral evidence and an adjournment of the trial.

The judge at first instance correctly applied the Denton test, in order to decide whether to grant the claimant relief from sanctions. In brief, when considering the third stage of the test (“all the circumstances of the case, so as to enable [the court] to deal justly with the application”), the judge concluded that the defendant would suffer greater prejudice if the relief was not given because he would be unable to cross-examine the claimant. He therefore granted the claimant relief from sanction.

This decision very much followed the more lenient approach adopted in Denton as opposed to the original and more draconian approach adopted in Mitchell v News Group Newspapers Ltd.

However, when this case went to appeal in the High Court, Turner J decided that a more robust stance should have been adopted. Not only did he refuse the application for relief, he also went on to strike out the claim.

One must ask whether this decision indicates that the pendulum may be swinging back towards the extremes of Mitchell in relation to applications for relief from sanctions. Turner J’s decision has clearly demonstrated (and perhaps warned those in practice), that judges should not be afraid to implement the full powers of their disposed in appropriate circumstances.

In a case that could shift the courts’ approach once again, what are the practical implications of the need to comply with deadlines?

Although obvious, it is still vital that practitioners realise the importance of sticking to deadlines. The issue would never have occurred had the claimant’s solicitors completed, filed and served their witness evidence on time, or at least within the agreed extension of time.

The importance of an effective case management system should not be underestimated. Such a system should be used to its full advantage to ensure that the team working on a case are aware of and comply with any directions or orders concerning compliance.

The correct level of supervision should also be given due attention to decrease the chances of missing court deadlines, especially where a considerable amount of prior preparation will be essential. It is important that witness statements are thoroughly prepared and that careful thought is given to the content. Therefore, it is a good idea to prepare early and ensure that signed witness statements are ready by the time of allocation.

However, mistakes cannot be avoided in their entirety and sometimes relief from sanction will have to be sought. It may be of some consolation for those in practice to note that they may be able to rely on witness statements as hearsay evidence even if they are out of time and they are not able to apply for relief from sanctions. This is a point of law that both judges appeared to agree on.

The decision also confirms the critical factors that the court will have regard to when considering parties’ applications, particularly relief from sanction.

Upon deliberation of the adjournment, Turner J was evidently conscious of the overriding objective to deal with the claim justly and at proportionate cost under CPR 1.1. He concluded that allowing an adjournment would not fulfill the overriding objective; he therefore decided not to adjourn the hearing and struck out the claim instead.

This decision reiterates the importance of the court’s overriding objective and the extent to which it influences the court’s decisions when managing cases, as required under CPR 1.4. It is therefore worthwhile considering the effects that a potential application may have on the overriding objective, prior to filing the application with the court.

Under CPR 1.3, parties are required to help the court further the overriding objective and it is important to consider, in light of the application, whether the court would be able to deliver justice:

  • With proportionate use of resources and within reasonable time.
  • Justly and at proportionate cost.
  • Within a reasonable time.
  • By proportionate use of the court and parties’ resources.

Given the outcome of this case and with particular reference to applications for time extensions or relief from sanctions, it is even more important that a legal advisor should consider the overriding objective with their clients before deciding what stance to take.

On a final note, it is worth mentioning that the court will not tolerate a lawyer’s default, even if it was through no fault of their client. Whilst courts appreciate that it may appear unjust to refuse an extension of time or relief from sanction under these circumstances, it causes greater harm in the long run to spare litigants the consequences of their lawyer’s defaults.

As a result, lawyers in practice should not be under the impression that the court is more likely to grant an application if the error was their fault, rather than their client’s, because the court has advised in Gladwin that the:

“… tolerance of lawyer’s default encourages sloppy practice and satellite litigation, thereby making litigation more hazardous and costs more unpredictable”.

It will be interesting to see which way the pendulum will swing in future cases that concern relief from sanction, if indeed it does at all. Either way, it is hoped that these types of cases can be avoided by applying good case management and having consideration for the overriding objectives.

Kennedys Lauren Theobald

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