RELIEF FROM SANCTION – WITHOUT A FORMAL APPLICATION.

pi_catherine_duffy 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.
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2 comments

  1. […] Catherine Duffy wrote on the Cutler -v- Barnet case in Relief from sanction – without a formal application. […]

  2. […] Catherine Duffy of Zenith Chambers writes on the Butler case in Relief from Sanction – Without a Formal Application […]

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