I happened to be enlightened by a Member of the Bar (Sundeep Virk: Cornwall Street Chambers) toda as to a new substitution within the civil procedure rules, essentially giving judge’s a much wider discretion to refuse to give relief to a litigant who has been sanctioned (usually) for non compliance with court directions.
With the risk of stealing the limelight from Sundeep, I have taken the liberty (with his permission of course) to publish his well considered comments on the matter:
“…as well as legal aid going in April 2013, so will CPR rule 3.9 which will be deleted in its entirety and substituted with the following wording which has been approved by Rule Committee:
'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 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 court orders.'
This is a somewhat stricter rule as it leaves judges with a wider discretion to refuse relief, which is the intention of the high judiciary who seem to have had enough of matters being struck out for one reason or another, but principally for non-compliance with court directions, and the district courts granting relief after conducting a “tick box” exercise following the current 3.9.
If relief is sought then there will be the need for an application which will have to be supported by evidence. I presume that many of the factors in the current 3.9 will feature in post 1/4/13 applications for relief from sanction, for the initial period at the very least.
In Fred Perry (Holding) Ltd (1.2.12) (CA) Jackson LJ did not fault Henderson J for conducting a tick box exercise, but refusing relief from sanction, said that the current 3.9 gives the court a discretionary power to grant relief against sanction and whist the court must consider all the factors set out in the current 3.9, it was not simply a matter of the court ticking all the boxes to show that consideration has been given. Jackson LJ went on highlight the amendment that is due to replace the current 3.9.
Interestingly where relief is not granted after a matter is struck out due to the negligence of solicitors; the only proper recourse would be to sue that solicitor in Professional Negligence.”
Sundeep Virk is a barrister and practises from Cornwall Street Chambers in Birmingham. His profile can be viewed by clicking on the following link: www.cornwallstreet.co.uk/index.php/.../9.../144-sundeep-virk