RELIEF FROM SANCTIONS FOLLOWING FAILURE TO FILE FUNDING INFORMATION AT START OF A COSTS ASSESSMENT – A TRIVIAL BREACH?

pi_catherine_duffy  By Catherine Duffy

In Warner v Merrett (QBD 12/6/2014) Judge Mackie QC found it was just to GRANT RELIEF from sanctions following a failure to serve funding information at the start of a detailed costs assessment in a Mercantile Court.

FACTS

The claimant failed to serve documents relating to additional costs liabilities and the insurance premium with the bill of costs. The defendant served points of dispute contending that as a result of the omission the success fees and insurance premium had to be disallowed The claimant immediately supplied the documents and applied for relief from sanctions.

HELD

  1. The Judge held that CPR 44.3B applied to documents that were served late and therefore the Claimant’s omissions were subject to the automatic sanctions.
  2. The decision in Mitchell v News Group Newspapers provided guidance but should not be applied like a rule or statute:-

–         It was not appropriate to focus intensely and narrowly on the word “trivial” in the Mitchell guidance.

–         It was necessary to look at the context and the effect of the breach;

–         The question of triviality had to be seen in the context of the duty to co-operate imposed on lawyers in Mercantile cases.

–         There was no duty on the defendant to contact the claimant for the missing information and they could not be criticised for not   doing so, but the prejudice caused to the defendant could have been avoided if they had contacted the claimant.

–         There had been no breach of court order and there was no history of default;

–         The claimant’s solicitors had acted immediately when they became aware of the omission.

–         In the context the breach was trivial.

–         Even if that were wrong, it was just to grant relief.

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