Case update: Relief from sanction granted for failure to file cost budget on time

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.

Facts

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.

Decision

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 [2013] 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:

• Work on the cost budget had not been started until 17 October;
• Due to the illness of the fee earner concerned, the cost budget had not been passed to someone else to finish and file at court until 14:30 on the last day for filing;
• The fee earner’s witness statement said that he knew his colleague to have filed the document at 21:00 on 18 October, however, had he checked the facsimile transmission report it would have confirmed that the transmission was unsuccessful;
• When the matter was raised by the defendant with the claimant’s solicitors, they refused to supply copies of the documents relating to the issue of when the document was filed and an application had to be made by the defendant to the court in order to get the documents from the court file.

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.

Katie Allard