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25th August 2014

Non-Compliance with Court Deadlines: A new test for relief from sanctions

In the case of Mitchell v News Group Newspapers Limited, [2013] EWCA Civ 1537, the Court of Appeal ushered in a robust and uncompromising approach to compliance with Court deadlines and applications for relief from sanctions when those deadlines were missed.

In the case of Mitchell v News Group Newspapers Limited, [2013] EWCA Civ 1537, the Court of Appeal ushered in a robust and uncompromising approach to compliance with Court deadlines and applications for relief from sanctions when those deadlines were missed. The case itself, related to Conservative MP Andrew Mitchell’s defamation claim arising out of the “Plebgate” scandal. Following Mitchell, Court deadlines were deemed by many practitioners to be set in stone, and it was widely considered that there would be little judicial tolerance for any missed deadline. However, as the post-Mtichell case law developed, it became clear that not every decision supported an uncompromising approach to non-compliance. In Summit Navigation Limited and others v Generali Romana Asigurare Reasigurare SA and another, [2014] EWHC 398 (Comm), the Court sent a stark warning to parties who sought to unreasonably take procedural points to trip up defaulting opponents. It was clear, that clarification was required from the Courts. This clarification has now arrived in the form of three Court of Appeal decisions in the cases of Denton v TH White Limited, Decadent Vapours Limited v Bevan and White and Utilise TDS Limited v Davies [2014] EWCA Civ 906. In Denton and the associated appeals, the Court of Appeal held that Mitchell had been misunderstood and misapplied. The Court stated that it would, in future, attempt to deal with applications for relief by applying the following test: The Court would firstly identify and assess the significance of any breach. In so doing, the Court would not focus on whether that breach was trivial, but whether it was serious or significant. If the breach is not serious or significant, then relief should normally be granted. If the breach is however of sufficient severity of seriousness, the Court should go onto consider why the default occurred. The Court should then evaluate all of the circumstances of the case, so as to enable the Court to deal justly with the application. Whilst it would appear from the above, that there has been a judicial softening to non-compliance, it should not be forgotten that the Court of Appeal remained of the view that the reasoning in Mitchell was still “substantially sound”. The Court is likely therefore to look closer at non-compliance than pre-Mitchell, and Court deadlines must still be adhered to. Non-compliance should be avoided at all costs. Likewise however, it is not necessarily appropriate to take advantage of an opponent who is struggling to meet a deadline, and reasonable extensions of up to 28 days should be agreed to if appropriate. All cases should be dealt with based on their individual facts. However, the following guidance is likely to apply in most cases: Deadlines should be strictly adhered to. If a deadline is proving difficult to meet, an extension of time should be sought from the other side as soon as possible. If the other side is not willing to agree to an extension, an application for relief from sanctions should be made prior to non-compliance. A prospective application is a far stronger application than a retrospective application. Deadlines must be carefully diarised. Holidays and other absences must be considered. When faced with a request for an extension of time, it is appropriate to grant such requests unless they jeopardise a hearing date. It is not always appropriate to take procedural points, and an unjustly hard-line approach to such requests will likely be punished with an adverse costs order. Stewart is a solicitor in our Dispute Resolution team. For further information on the above or to see how Stewart is able to assist you further, please contact Stewart on 01223 532706 or click here to email Stewart. For more information on our Dispute Resolution services please click here.

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