What to do if your opposing party refuses to apply for relief from sanctions

It struck me that guidance on relief from sanctions is everywhere.  This is fine, but like many things in law, the straightforward is easy when it follows a prescribed pathway – the difficulty arises when the correct process or procedure is not used.

Worked Example

The reason for this is due to finding myself in a sticky wicket. In a claim against 2 defendants, one has produced a sub-par disclosure list (possibly a C minus), and the other has served an abomination.

I will be able to obtain an Unless Order against D1, as they were slightly off, but not so far as to be punished by anything beyond an Unless Order. To put it kindly, they just deserve a second chance, after which it will be fine.

D2 is not in the same position. Their N265 was served with a number of problems, for example it was:

  • unsigned;
  • undated;
  • not using form N265;
  • failed to show the extent of the search;
  • did not include e-disclosure;
  • etc (you get the drift, it was pathetic)

I highlighted their need to apply for relief from sanctions. 14 days later I received a signed and dated list that repeated all the above defects (save for being unsigned and undated, obviously). Their covering letter stated they had no intention of applying for relief from sanction.

To throw in some other relevant points, they were 14 days late with inspection (and missing a document) and demanded our documents at the last possible moment by fax, causing a lot of last minute running about so we were compliant with the Court Order). i.e. “gamesmanship”.

What to do next?

Strike out!

My application is due to be finalised before Counsel casts an eye over it and my accounts department raise a cheque for the application fee.

As litigators will no doubt be aware from the various articles online, D2 should have applied at the earliest opportunity and sought relief from sanctions.

The point is their list was so defective that it was illusory, not in good faith and fell far below the obligation upon parties to give disclosure. Disclosure cannot be underestimated (see the Marcan Shipping decision which in my view remains an important yardstick) and the Court is loath to allow a party to allow standards to slip.

Pre-Mitchell

It may have been an Unless Order or specific disclosure that most litigators would have reverted to under the older (and sloppier) regime.

Now, the party who has complied with a Court Order now has an opportunity to seek strike out, with an unless order in the alternative as a secondary position.

The issue is that your District Judge may be pro-Mitchell and strike out a rubbish disclosure list (please note, it has to be a really bad list); but on the other side he or she may be a dinosaur and go with an Unless Order.

The application

(1) Draft the application notice using form N244. Ask for strike out due to failure to comply with a Court Order.

(2) Prepare a draft order providing for strike out and judgment in your client’s favour. Use square brackets to provide a CPR r 23.10 provision if you want it on the papers. It is unlikely this will succeed, but you may get lucky.

(3) Draft a LENGTHY witness statement in support of the application.

Your witness statement should be framed as follows:

  • Highlight the Court Order and its requirements (i.e. key dates).
  • Explain your client’s compliance with the Order (coming with clean hands and all that malarkey).
  • Start “throwing stones” at the defaulting party. Append a copy of their shoddy documents or copies of correspondence exchanges in support of your application.
  • Assert the prejudice to your client.
  • Explain how the defaulting party should have behaved in applying for relief from sanction.
  • Then outline how their conduct has deviated from good practice and the guidance handed down in Mitchell and all the other relevant decisions (I mean those relating to specific defaults, such as witness evidence in Durrant for example, or other decisions affecting types of disclosure).
  • Amplify the intransigence and difficulty by the other side. You have been put to making this application, and would not be bothering the Court, however you have been forced to do so. Adopt a victim’s mentality briefly for these paragraphs!
  • Ask the Court to strike out the opposing party.

It is then likely you will need to run this past your barrister before the final version is filed with the Court. After this, cross your fingers and hope for the best.

Remember, if the other side then quickly gets their house in order after you make the application, and they ask you to withdraw, simply ask for these documents to be added to the Court file. Do not bottle it!

Over and out.

Legal Orange.

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One thought on “What to do if your opposing party refuses to apply for relief from sanctions

  1. Pingback: CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POSTS | Civil Litigation Brief

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