What changed?

From 1 April 2013, CPR 3.9 was amended to provide that on an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order:

“the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders”.

These two factors replaced the previous (non-exhaustive) list of nine circumstances the court would consider on such applications, which included whether the application for relief had been made promptly, whether the failure to comply was intentional, whether there was a good explanation for it, and the effect of both the failure and the grant of relief on each party. The amended rule applies to applications made on or after 1 April 2013.

From that date, there was also an amendment to the “overriding objective”, to which the court must seek to give effect whenever it exercises any powers, or interprets any rule, under the Civil Procedure Rules (CPR). The amendment made it clear that dealing with cases justly and at proportionate cost includes “enforcing compliance with rules, practice directions and orders”.

How were the changes implemented?

The changes were implemented by amendments to CPR 1.1 and 3.9(1).

Why were the changes introduced?

The amendments sought to implement Lord Justice Jackson’s recommendation that the courts “should be less tolerant than hitherto of unjustified delays and breaches of orders”.

The intention behind the amendments was to force a change of culture, whereby breaches of court orders would not be tolerated as readily as they were previously, as well as to simplify the rule.

What are the implications for commercial parties?

These amendments brought about a significant change in culture, in that the courts are more likely to make tough case management decisions where parties are in breach of rules or court orders and less willing to grant relief from sanctions in the event of a breach. The courts are also stricter in granting extensions of time for compliance with rules and orders.

A number of first instance decisions after the reforms were implemented highlighted a tension between the increased focus on compliance and the desire to do justice in the individual case. The Court of Appeal’s decision in Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1537 came down firmly on the side of compliance (see “Court of Appeal sends clear message on need for strict compliance in Mitchell decision“) but that approach was tempered by the subsequent decision in Denton v TH White Ltd, Decadent Vapours Ltd v Bevan, Utilise TDS Ltd v Davies [2014] EWCA Civ 906 (see “Court of Appeal softens Mitchell guidance but insists no return to old culture of non-compliance“).

Summaries of other decisions relating to the court’s changed approach and the Mitchell / Denton guidance can be found under the “Relief from sanctions” tag.

Note: Content up to date as at 10 June 2022

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