English assets, overseas owner - resealing foreign grants of probate in England and Wales
In the case of Bari and others v Alternative Finance Ltd and another (2014), the High Court has granted relief from sanction for late filing of a costs budget, but ordered the claimant to pay indemnity costs for its failure.
This was an application by the claimant for relief from sanctions in relation to a failure to file a cost budget by 18 October 2013. The solicitors for the claimant attempted to fax the cost budget to the court at about 21:00 on 18 October but the transmission did not succeed and the document was actually filed on the next business day, 21 October. The cost budget was therefore filed one business day late.
The jurisdiction of the court to relieve the claimant from the sanction imposed by Rule 3.14 depends on Rule 3.9(1) of the Civil Procedure Rules (CPR).
In this case, Deputy Master Matthews referred in particular to the decision of the Court of Appeal in Mitchell v News Group Newspapers Limited  EWCA Civ. 1537, where a distinction was drawn between “trivial” and “non-trivial” breaches of the CPR.
Deputy Master Matthews held that, in principle, this was a trivial breach for which the court should give relief from sanctions. However, he was bound to take into account all of the circumstances of the case, which he noted “did not look very good from the point of view of the claimant’s solicitors”, for the following reasons:
Despite being "narrowly persuaded" that relief should be granted, Deputy Master Matthews found the above factors to amount to an unacceptable state of affairs. He commented that the claimant's solicitors who had acted in a “cavalier fashion” brought this matter entirely on themselves and it would not be right or just in this case to order the second defendant to pay the cost of the claimant having to apply for relief from sanctions.
In order to mark the court’s disapproval of the claimant’s solicitors actions, costs were ordered to be paid on an indemnity basis.
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