The judgment of His Honour Judge Gosnell of in Hewitt v. Smith & Winslow Utilities Limited (2017), published on CivilLitigationBrief.com, appears to espouse a more practical – and perhaps less technical – approach to applications for relief from sanctions.

The parties had been ordered to file their costs budgets by 10 June 2016 ahead of a costs and case management hearing on 25 August 2016. The Claimant failed to comply with the order, but did file the budget on 17 August 2016, in compliance with CPR 13.3 as it then was. 

Although the District Judge had already indicated that few amendments to the budgets would be required before their approval, Counsel for the Defendant noted that the Claimant’s budget had been filed late and it was agreed that the Claimant would need to seek relief from sanctions. No arguments were advanced that the late filing of the budget had caused any prejudice. Approval of the costs budgets was therefore postponed so the Claimant could apply for relief from sanction, which was scheduled to be heard at a further case management conference which the District Judge had already scheduled. 

At the subsequent hearing, the Claimant’s application for relief from sanction was dismissed. In dismissing the application, the District Judge noted that to allow relief would “contradict the spirit if not the letter of” the judgment in Jamadar v Bradford Teaching Hospitals NHS Foundation Trust EWCA [2016] Civ 1001 (see our summary of the case here), because it meant that costs budgeting and case management could not be dealt with at the same hearing, meaning a further hearing had to be scheduled. 

The Claimant appealed. The appeal came before HHJ Gosnell, who held that the District Judge should have distinguished the circumstance of this case from those in Jamadar, stating that:

“In the present case, the budget was filed and served eight days before the hearing. The budgets had been considered by both parties, there had been some discussions about the contents and the appellant had filed a helpful schedule containing both sets of figures. The objection about the appellant’s budget being late was only raised minutes before the hearing started by counsel for the respondents. Both counsel appeared to have been properly instructed and capable of dealing with costs management if they had been asked to do so. The second difference is that the application for relief from sanctions (and costs management) were listed to be heard at the same time as a case management conference which had been conceded by both parties to have been reasonably required”.

HHJ Gosnell also commented that it was ”unfortunate” that the District Judge had not explored with Counsel whether they were still in a position to deal with the costs budgeting exercise at the hearing on 25 August 2016, notwithstanding the breach, and that he was uncomfortable with the concept that a need for a further hearing delivered a “knock-out blow” to an application for relief from sanction, particularly in this case when “the respondents took a technical point on the appellant’s late filing of the budget in circumstances where they could have overlooked the delay and proceeded with the hearing without any prejudice to them”.

 

The underlying message in HHJ Gosnell’s judgment appears to be that the Court should focus less upon technical breaches and more upon the actual prejudice caused by them.