The following is taken from the full Judgment which can be found on Bailii
This was a case heard in the Commercial Court. Following a CMC in July 2013 direction were set to include standard disclosure by 30th August 2013. This was extended to 6th December 2013 by consent. A further extension sought was refused by the Claimant. The Defendant applied to extend the time. The Court allowed until the 17th January 2014 but made the order in unless terms meaning the Defendant’s Defence and Counterclaim would be struck out if the order was not complied with.
The Unless Order did not specify a time for compliance but from D19.2 of the Commercial Court Guide the time for compliance would be 4.30pm. The Defendant’s solicitors mistakenly thought the time for compliance was 5.00pm.
The Defendant’s list was not ready until 4.40pm and was offered for exchange at 4.45pm. The Claimant considered that the Defendant’s were out of time but sought to return Monday after speaking to counsel. The Claimant did not serve a list either. The Defendant served their list anyway at 5.16pm 46 minutes after the deadline and issued an application for relief from sanction on the Monday. The Claimant opposed the application.
Application of Mitchell
Reference was made to Newland Shipping & Forwarding Ltd v Toba Trading FZC in which Mr Justice Hamblen summarised the approach to be adopted post Mitchell.
Under CPR3.9 the ‘paramount’ considerations are now: ‘the need (i) for litigation to be conducted efficiently and at proportionate cost and (ii) to enforce compliance with rules, practice directions and court orders’
Regard should be had to all the circumstances of the case but should be given less weight than the above.
The starting point is whether the sanction has been properly imposed and complies with the overriding objective. If not the proper way to contest the order would be by appeal or an application to vary or revoke.
When the Court is considering whether to grant relief it would usually start with the nature of non-compliance. If trivial relief will usually be granted provided the application was made promptly.
If the breach is not trivial there would have to be a good reason for the breach. Good reasons are likely to arise from circumstances outside the control of the party in default.
The breach could be measured in minutes not hours. The Defendant’s narrowly missed the deadline.
The Claimant submitted that in light of the previous breaches the breach could not be considered trivial. Mr Justice Hamblen considered that it was the non default in consideration that mattered rather other defaults at other times.
The Court found the default was trivial and the application was made promptly.
The reason for default was the Defendant’s solicitors misunderstanding of the time for service incorrectly believing this to be 5.00pm.
It could not be said that the delay was due to circumstances outside the control of the party in default. The Court accepted there was no good reason however it was understandable.
Again referring to Newland Mr Justice Hamblen did not consider it generally appropriate to consider the previous considerations under CPR3.9.