RELIEF FROM SANCTION – WITHOUT A FORMAL APPLICATION.

 By Catherine Duffy

In Cutler v Barnet LBC (QBD 21/10/14) Supperstone J held that a judge had erred in not considering a defendant’s oral application for relief from sanction.  The court had a discretion to consider such an application even where a formal application under Part 23 had NOT been made.

FACTS

• The defendant was defending against a possession claim.
• An order had been made that unless the defendant provided the required disclosure within 14 days she would be debarred from defending the claim.
• The judge subsequently found that the defendant’s disclosure had been incomplete.

THE APPLICATION FOR RELIEF FROM SANCTIONS

• During the hearing the Defendant made an oral application for relief from sanctions.
• The judge found that an application for relief from sanctions had to be formally filed under Part 23.
• As a formal application had not been made the judge found that he had no power to consider the application and no discretion to grant relief;
• The Claimant was debarred from defending the claim.

ISSUE

• The issue was whether the judge had had discretion to consider an application for relief from sanctions which had not been formally made in writing.

APPEAL

• The appeal was allowed. Supperstone J held:-
• The absence of a formal application for relief from sanctions was not conclusive.
• At the hearing the Claimant had made an oral application, supported by a solicitor’s statement.
• Neither CPR 3.8 nor 3.9 required an application for relief to be made in writing;
• The judge had had the power to determine the application and could have granted it if he considered it appropriate.
• The older authorities remained good law;
• The court could of its own motion consider relief from sanctions if appropriate.
• The judge should have balanced the r3.9 factors with proportionality and the overriding objective.
• In failing to do so, debarring the defendant from defending the claim had been a breach of article 6.

Tags: Application, catherine duffy, part 23