There needs to be a breach before there’s a sanction

In a recent Case Management Conference (Freeborn v. Marcal [2017] EWHC 3046 (TC)), Mr Justice Coulson was required to decide whether or not a sanction had been imposed, before considering the Defendant’s application for relief from that sanction.  


A letter from the Court to the parties, dated 20 September 2017, provided notice of the hearing on 24 November 2017 and required costs budgets to be filed and exchanged not less than 7 days before the hearing.


The Claimant’s costs schedule was filed and served 21 days before the hearing, in accordance with CPR 3.13. The Defendant’s solicitor filed and served their costs budget 7 days beforehand, in accordance with the Court’s letter. In correspondence, the Claimant’s solicitor insisted that the Court’s letter had been in error, that the standard 21 day rule applied and that that the Court should treat the costs budget as comprising only of the applicable court fees in accordance with CPR 3.14. As a result, the Defendant’s solicitor made an application for relief from sanction, in case it was required.


Mr Justice Coulson found that the application was not necessary. The Court was able to order alternative dates for the filing and exchange of costs budgets and the letter amounted to such an order. Although it was never confirmed whether or not the Court had meant to expressly vary the date, Mr Justice Coulson commented that “a busy litigation solicitor is entitled simply to rely on the date specified in writing by the court office, rather than embarking on an investigation into whether or not the letter contained an error”.


The Claimant was also ordered to pay the Defendant’s costs, as their position had forced the Defendant to make the (unnecessary) application.


Mr Justice Coulson made clear that his judgment should be seen as a warning to others: although the Court was now taking a far less forgiving approach to non-compliance, that should not be abused, as had been the case here. He noted that litigants needed to “consider carefully whether the alleged breach of the rules is, on analysis, any such thing and, even if it is, whether it is proportionate and appropriate to require or oppose an application for relief from sanctions in all the circumstances of the case”.


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