We received some guidance from a very senior person within our firm relating to Mitchell and relief from sanctions.
Our new procedure where there is, or has been, a breach of Directions is:
- send an application notice to the Court (without evidence) and ask the Court to return to you for service. At the same time a copy of the unissued N244 to be sent to the opposing party for information purposes only; and
- then add the evidence in support of the application and serve it on the other side as soon as the application notice has been returned by the Court.
This is allegedly so that we can get the application notice in before or soon after a breach. While not expressly stated, we understand this is so that we can rely on the timing of the application being received by the Court as showing our promptness.
The big problem is that we do not buy into the reasoning for this approach. The justification is said to be that problems have arisen where applications have been issued and served without the supporting evidence, as that does not comply with the rules. If the evidence is attached to the application from the outset this person alleges this problem does not arise and either the court or we can serve the application.
Luckily for us, this senior person is too far removed to be able to monitor us effectively and we will continue to make application supported by evidence (particularly as there is a chance you may get the application “on the papers”).
I hope other firms are not being given this type of guidance from senior staff members. Or maybe they are, which is why so many decisions are being given and causing confusion.
It is time that a working group was allowed to meet and lay down some very clear guidance and template documents.
Over and out.