Long v Value Properties and Another  EWHC 2981 (Ch)
How should we approach applications for relief from sanctions made by the other side? Elliot Kay considers a recent and useful decision of the High Court.
This case concerned the late service (by 5 days) of funding documentation in the context of detailed assessment proceedings in circumstances whereby the Defendant was well aware that the matter was funded by way of a CFA.
Despite knowing of the Claimant’s late service the Defendants did not bring it to the Claimant’s attention and proceeded to serve their points of dispute (in relation to which the Defendants themselves required a 21 day extension and which they knew would require amendments once further information regarding the CFA had been filed and served). Thereafter the Defendants were uncooperative with the Claimant and refused to amend their points of dispute such that an application for relief was required.
The Claimant applied for relief from sanctions. At first instance the matter was heard by Master Rowley who, without the benefit of Denton, dismissed the application for relief.
The Claimant appealed and the appeal came before Mr Justice Barling who now had the benefit of the revised approach to such applications following Denton.
Barling J noted that the master appeared to have ‘fallen into the error’ identified in Denton of not considering all the circumstances of the case. Had those circumstances been considered Barling J was of the view that the application for relief would have been successful. Ultimately, no significant prejudice had been caused to the parties or to the Court and the application for relief should have been granted.
Barling J highlighted that the Defendants’ conduct had not been helpful and that the matter could have been resolved but for their uncooperative approach- “The defendants’ behaviour here has been precisely the kind of opportunistic, and non-cooperative conduct in litigation condemned by the Court of Appeal in Denton”.
“Had the defendants taken a different course the matter could probably have been completely resolved within the overall period of the extension of time which they applied for and were granted by the claimant, or very soon thereafter.
This would have saved the parties and the court the time and expense of a lengthy hearing before the judge and an even longer appeal hearing before me.”
This case is a useful lesson in how to deal with applications for relief made by the other side. An uncooperative approach in unjustified circumstances may well lead to rising costs for which the Court may hold you liable. Proceed with caution.