This note will consider the importance of complying with Court directions and orders within proceedings and what to do if you missing a court deadline. It does not deal with any issues under the [Limitation Act 1980].
Directions – A timetable for trial
After the parties have served their claim, defend any reply they should try to agree directions. If the parties cannot agree on directions, it will be left to the Court to determine them at a short hearing known as a Costs and Case Management Conference (“CCMC”). The Court will also approve, or determine, the parties’ costs budgets at the same hearing.
The directions are a timetable for the parties to undertake the stages of litigation. For example, complying with disclosure and the serving witness statements. It will also set out the length and approximate date of the trial.
Therefore, if a party misses a deadline to comply with a direction, then it may have a knock-on effect for the forthcoming directions. It could also impact the date of a hearing. The Court is therefore extremely reluctant to move a trial, or hearing date, as it may affect the dates for other parties in different proceedings.
Further, the Civil Procedure Rules may determine how long a party has to do something after another event has happened, for example, a defendant will need to file the defence within a certain period of the particulars of claim being served on them.
Therefore, it is especially important for a party to ensure that they comply with a rule, Court Order, or practice direction.
Non-compliance with a rule, court order or a practice direction
If a party has failed to comply with a rule, or missing a court deadline, any sanction for failure to comply imposed by the rule, practice direction or court order has effect until you apply for and obtain relief from the sanction (see, CPR 3.8(1)).
This means that, if a party does not comply with a direction on time, they are likely to face a sanction that could include a costs penalty or be barred on relying on something, such as a witness statement. In some cases, a party’s case may be struck out.
Therefore, what do you do if you have breached a rule, Court order or practice direction, which has resulted in a sanction?
Application for relief from sanctions
If there is no specific provision in the Civil Procedure Rules (for example, an application under CPR 13 to set aside a Judgement in Default), a party is able to apply to Court for relief from the particular sanction. This is an application, which if successful, would mean that a party would not suffer the sanction for missing the deadline (for example, the party would be allowed to rely on witness statements). However, they may still need to pay the innocent party’s costs. It is important to make the application as soon as possible and it should be supported by evidence.
Court’s discretion
When considering whether or not to grant relief from sanctions, the Court will consider a 3-stage test that was first set out in [Denton v White; Decadent Vapours Limited v Bevan; Utilise TDS Limited v Cranstoun Davies [2014] EWCA Civ 906]. In summary, the test is as follows:
- Is the breach serious?
- Is there a reasonable explanation for the breach?
- Are there any other “circumstances” the Court should consider?
Taking these in turn:
Is missing a court deadline a serious breach ?
As with any matter, some breaches are more serious than others. This will usually depend on the length of time a party has taken to remedy the breach and what significance a delay will cause. For example, serving a witness statement 2 months late would, of course, be more serious than serving it 15 minutes late due to an IT issue. As a general rule of thumb, the longer the breach, the more serious the consequences are likely to be as the resulting breach may affect the further directions or even a hearing or trial date.
Is there a reasonable explanation for the breach?
Having determined whether or not the breach is serious, the Court must then determine whether or not there is a reasonable explanation for the breach. This will be determined with evidence on a case-by-case basis. Therefore, you should set out exactly why the direction or Court order was missed.
Further, if the deadline is not met due to a mistake by a party’s solicitor, the Court is also not likely to accept this as a reasonable excuse.
Consideration of all the circumstances of the case
Having examined whether or not the breach was serious and whether there was a reasonable explanation or not, the Court will then examine “all the circumstances of the case.” These may include the following, the consequences of the sanction on either party; whether the offending party has breached other court orders of practice directions in the same case; whether or not the application was brought promptly.
However, the Court will only consider the prospective merits of the case in limited circumstances, i.e., when the offending party has a particularly strong case or the innocent party a very weak case. It is important to note that an application for relief from sanctions is not a mini trial. There are over provisions on the Civil Procedure Rules for this, such as an application for summary judgement and/or strike out.
Innocent parties
If you are an innocent party (i.e., the party who has not breached a Court order or rule) and are on the receiving end of a relief from sanctions application, it is advisable to obtain legal advice since any opportunistic opposing of an application for a minor breach is likely to result in an adverse costs order against you.
For example, if a party has served a witness statement 15 minutes late, it may be prudent to agree to any relief from sanctions application made. However, if the statement is served 2 months late and potentially jeopardises a hearing date, then the party may want to consider whether to oppose the application.
Such considerations need to be determined on a case-by-case basis with advice from the party’s lawyers.
Learning Points
As set out above about missing a court deadline, it is important not to delay in making an application for relief from sanctions. Further, if you are potentially going to miss a Court deadline, it is advisable to take advice to make an application for an extension of time before the deadline for compliance has occurred.
How can our litigation barristers & lawyers assist you with a dispute
The barristers and solicitors at Madison Legal, headed by Daniel Feetham KC, have considerable experience dealing with advising and dealing with applications for missing a court deadlines, relief from sanctions both for the offending party and the innocent party. If you have a potential claim or are facing a potential dispute matter, please do not hesitate to contact us for advice, send us an e-mail. Alternative contact us via LinkedIn.
