Earlier this week, the Court of Appeal comprising The Master of The Rolls, Lord Justice Jackson and Lord Justice Vos heard the conjoined appeals in Denton and Ors –v- T H White Limited and anr, Utilise TDS Limited –v- Davies and ors. and Decadent Vapours Limited -v- Bevan and Ors. all of which concerned applications under CPR r. 3.9 for relief from sanction.
We must now sit patiently and wait for the guidance that shall undoubtedly be provided regarding the implementation of the test previously set out in Andrew Mitchell MP -v- News Group Newspapers Limited  EWCA Civ 1526.
In the meantime, Judges continue to be faced with such applications.
In Mitchell, the Master of the Rolls referred to two circumstances in which relief should be granted: where the breach was trivial or where there was a good reason for it.
At paragraph 41 of the Judgment his Lordship said, “If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted”.
In Cranford Community College v Cranford College Ltd (2014) LTL 17/6/2014 His Honour Judge Hacon, sitting in the Intellectual Property Enterprise Court, was faced with an application for relief made retrospectively after the Defendant failed to serve statements of its witnesses within an agreed extension of time to do so.
It served statements from three of its witnesses 13 days late. The first witness was late because he had been in hospital or caring for his wife who had been hospitalised shortly before the deadline for exchange. The second witness was late because he had unexpectedly been required to attend to professional commitments abroad. The third witness offered no explanation.
HHJ Hacon, applying Mitchell, decided that 13 days late was not trivial.
The explanation of the first witness was ‘exceptional’; it having been assumed that his wife’s condition had become the priority in his life to which the proceedings took a back seat. Accordingly, relief was granted.
The second witness’s brief explanation of unexpected work commitments was not sufficient and the third witness had provided no explanation. In the circumstances, relief was refused for the statements of those two witnesses.
We will have to wait and see what further guidance is provided by the Court of Appeal in due course.