Relief from sanctions: Simon Patterson (The Trustee in Bankruptcy of George Spencer) v George Spencer and others [2017] EWCA Civ 140


By Frances Lawley

The Appellant (the sixth Defendant in proceedings regarding the bankruptcy of her father) sought relief from sanctions after her application for permission to appeal was struck out for failure to provide a transcript of the judgment.

The application for relief from sanctions was heard at first instance by Mr Henry Carr QC sitting as a Deputy Judge of the High Court in the unfortunate period between the judgments in Mitchell and Denton. The appellant relied on three grounds:

  1. that the Unless Order requiring filing of the transcript of the judgment should not take effect without evidence of receipt by the Appellant;
  2. that the Appellant had mistakenly filed the transcript of the hearing in place of the transcript of the judgment rather than deliberately avoiding filing the latter; and
  3. that the justice of the case required the reinstatement of the Appellant’s appeal.

The application was dismissed on the basis that The Jackson reform was designed to end a “culture of delay and non-compliance“. Such culture would only be promoted if relief from sanctions were given in the present case”.

The Court of Appeal reviewed the decision in light of Denton as follows (per Henderson LJ at paragraph 36):

Lacking clairvoyance, the judge was understandably unable to forecast the revised guidance which this court would give in Denton, one month after the hearing before him. It may therefore be said that his reliance on Mitchell led him into potential error in at least three ways. First, he wrongly regarded the two factors specified in rule 3.9(1) as being “of paramount importance”, although it would be difficult to quarrel with his statement that he “must give them great weight” read in isolation. Secondly, he said that the Appellant’s failure to comply with the Unless Order should not be viewed in isolation, when according to Denton he should have started at stage one by doing precisely that, reserving consideration of the Appellant’s previous course of conduct for the third stage. Thirdly, and more generally, he did not adopt the structured three stage approach which Denton enjoins.

Applying the three stage test, the Court of Appeal held that whilst the breach was serious (the application for permission to appeal could not be determined without the transcript of the judgment), there were good reasons for it (the Appellant had not received the unless order in time to comply with it and, as a litigant in person, had been unaware of the difference between the transcript of the hearing and the transcript of the judgment) and that, as proceedings were still in their infancy at the time of the breach, the circumstances of the case justified the granting of relief.

It is of course somewhat unusual that the appeal of a decision made in the time between Mitchell and Denton has only just been heard. The guidance is still helpful however for occasions when one is confronted with a judge taking a more hard line Mitchell approach to relief.



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