Contrasting decisions on relief from sanctions for late filing of appeal bundles

17 April 2015

In the case of Davis Solicitors LLP v Raja and another [2015] EWHC 519, the High Court dismissed an appeal against the refusal of relief from sanctions for failing to file an appeal bundle.

The claimant, a firm of solicitors, had been found to have been negligent and ordered to pay damages. The claimant appealed, but without lodging an appeal bundle in breach of not only of Practice Direction CPR PD 52B, but also an “unless” order. The claimant's subsequent application for relief to prevent the appeal being struck out came before HHJ Mitchell, who dismissed the application, prompting the claimant to make a further appeal.

Supperstone J upheld the refusal of relief and dismissed the appeal. He rejected the claimant's argument that the breach was not significant because all of the relevant documents had already been served on the defendants as part of the trial bundle. He held that the failure to comply with PD 52B and the unless order amounted to “serious or significant”. In addition, Supperstone J was of the view that the claimant had not provided a good reason for the default, and all of its explanations indicated a continuing lack of understanding of the importance of the rules.

Supperstone J also rejected the submission that HHJ Mitchell erred in having regard to the merits of the appeal when considering all the circumstances of the case. He held that HHJ Mitchell was entitled to do so, and to conclude that they were not very strong. He was also entitled to take account of the fact that the claimant was still in breach of the practice direction more than five months after the appeal bundle should have been filed, and that the continuing default was deliberate.

In the more recent case of Hogg v Eddery [2015] EWHC 942 (Ch), the High Court granted the appellant relief from sanctions for failure to serve an appeal bundle on time in accordance with PD 52B.

This was an appeal from an order for summary judgment pursuant to CPR Part 24. Permission to appeal was granted by order of Nugee J on 25 November 2014.

It was accepted in that case that the appeal bundle had not been served upon the respondent in accordance with the PD 52B, paragraph 6.2 and in what the appellant described as an abundance of caution, an application had been issued for a relief from sanction under CPR 3.9.

Although the appeal bundle was lodged with the court, the appellant failed to serve a copy of the appeal bundle on the respondent within 14 days of grant of permission. However, the respondent's solicitors were informed that permission had been granted and correspondence between solicitors included reference to listing of the appeal. The failure to serve the appeal bundle was remedied immediately upon discovery. The respondent did not suggest that he had suffered any prejudice and there was no effect upon the hearing date, the preparation for the hearing or the evidence before the court.

In this case it was relevant that, despite the short timescale between the grant of permission to appeal and the hearing of the appeal itself and therefore the need to provide an appeal bundle to the respondent to enable proper preparation, as the respondent had all the relevant documentation but for the chronology and the official transcript but was fully aware of the detail of the decision of the Master, the breach was not serious or significant. Mrs Justice Asplin commented that it was unnecessary to spend much time considering the reasons for the failure and instead it was more appropriate to evaluate all of the circumstances of the case in order to deal justly with the application.

Mrs Justice Asplin concluded that although inadvertence is not a good reason for failure to comply with a Practice Direction, when taking into account all of the circumstances in order to deal justly with the application, including the need for litigation to be conducted efficiently and at a proportionate cost and to enforce compliance with the Rules, Practice Directions and Orders, relief should be granted.

Whist these decisions may appear contrasting, they clearly demonstrate the court’s willingness to consider each case on its merits when it comes to the question of whether to grant relief from sanction in situations similar to those above, understandably placing emphasis on any prejudice caused by the conduct of the parties in question and the impact on continuing proceedings.  

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