The new CPR Rule 3.9: what circumstances do the courts now consider in an application for relief from sanctions?

Relief from sanctions can be applied for under CPR Rule 3.9. The rule before the Jackson reforms came into force on 1 April 2013 set out the circumstances that the court must take into consideration on any such application, as follows:

“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances including –

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;

(f) whether the failure to comply was caused by the party or his legal representative;

(g) whether the trial date or the likely trial date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party; and

(i) the effect which the granting of relief would have on each party.”

These 9 factors were removed by The Civil Procedure (Amendment) Rules 2013 and CPR 3.9 with effect from 1 April 2013 became:

“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate costs; and

(b) to enforce compliance with rules, practice directions and orders.”

It was widely considered that the new rule’s removal of the old rule’s checklist would mean that parties would no longer be able to take advantage of the list of extenuating circumstances to assist them in an application for relief from sanctions. So, six months on, to what extent is that in fact the case?

A number of cases have been reported relating to relief from sanctions since 1 April 2013, but two recent cases in particular help us with this point.

In Michael & another v Middleton and another [2013] EWHC 2881 (Ch), the claimants applied for relief from sanctions under CPR Rule 3.9 following the striking out of their case in April 2012. The application was made after 1 April 2013. One of the issues the judge, HHJ David Cooke, had to consider was whether any of the old rule 3.9 applied or just the new rule. In his judgment on 19 August 2013, the judge referred to the judgment by Hildyard J. in Tavataba Thevarajah and Others v Riordan and Others on 9 August 2013 (unreported), in which relief from sanctions against the defendants was refused, and concurred that, although the old rule 3.9 checklist had been removed, nonetheless the checklist factors still represented matters that continued to be relevant for the court in its overall assessment required by the new rule, albeit that the new rule was more rigorous and that the courts should be slow to conclude that relief was appropriate and just.

Interestingly, Thevarajah was back before the courts (Thevarajah v Riordan and others) following a second application for relief from sanctions, and this time the defendants succeeded. In his judgment on 10 October 2013, the judge, Andrew Sutcliffe QC, further endorsed the view that the matters in the old pre-1 April 2013 checklist remained of relevance to an application for relief from sanctions, albeit that the new rule did not require the court to work through each of the 9 items but merely have regard to them.

It appears, therefore, that in considering “all the circumstances of the case” under the new CPR Rule 3.9, the courts will still take into account the 9 checklist factors from the old rule 3.9, albeit that they are not mandated to do so and will not follow them slavishly, but will, as expected, nevertheless adopt a more rigorous and robust approach to relief from sanctions applications than before.

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