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.
- 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.
- 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.
- 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.