Civil Procedure Rules – Relief from sanctions – CPR 3.9 – Respondent bringing proceedings against appellant for possession of property – Claim dismissed with costs after respondent failing to attend directions hearing – Respondent applying successfully for relief from sanctions under CPR 3.9 with result that claim reinstated – Whether judge applying correct test for grant of relief – Whether failing to give sufficient weight to factors in CPR 3.9|(1)(a) and (b) – Appeal dismissed
The appellant occupied a residential property under a tenancy from the respondent, a social housing provider with charitable status. Following incidents of antisocial behaviour by the appellant, including a conviction for a racially aggravated public order offence against a neighbour, the respondent served a notice of possession and brought possession proceedings against the appellant. The judge ordered a directions hearing for April 2014, at which directions were also to be given in proceedings brought by the father of the appellant’s children under the Children Act 1989. The respondent could see no purpose in the directions hearing, since directions in relation to its claim had already been given at an earlier date and had been complied with. It sought to have the hearing date vacated and, although that did not happen, the respondent did not attend the directions hearing since it believed that the matter would not be dealt with on that date. As a result, its claim was dismissed with costs.
The respondent applied successfully to the judge for relief from sanctions, pursuant to CPR 3.9, and its claim was reinstated. The judge noted that the breach was not trivial but he took into account the respondent’s reasons for it, the expense and delay that would be involved if the respondent had to reissue proceedings, the lack of clarity as to why the directions hearing had been ordered and the fact that the respondent’s non-attendance had in fact accrued to the appellant’s advantage. That advantage included the fact that the Children Act proceedings would now be concluded prior to the possession claim and would thus involve the assumption that the appellant would continue to live in the property.
The appellant appealed, contending that the judge had misapplied CPR 3.9 and taken irrelevant considerations into account. She submitted that where the breach was serious, and there was no good reason for it, the judge should have given greater weight to the factors in CPR 3.9(1)(a) and (b), namely the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules practice directions and orders, following the approach in Denton v TH White Ltd [2014] EWCA Civ 906.
Held: The appeal was dismissed.
The starting point when considering the respondent’s application for relief from sanctions was that the application had been made in good time. The judge had properly proceeded on the basis that the sanctions had been properly imposed and had complied with the overriding objective. He had also, in effect, carried out the required three-stage approach of first identifying and assessing the seriousness and significance of the breach, then considering why it had occurred, and finally evaluating all the circumstances of the case so as to enable him to deal justly with the application, including factors (a) and (b) in CPR 3.9(1).
The judge had found that the respondent’s failure to attend the directions hearing was not a trivial breach. The failure to attend was a serious or significant default, albeit one which, because of its particular circumstances, was not at the top end of the scale. The judge had carefully considered how the default had come about and had found that, while the respondent had deliberately failed to comply with an order of the court, its failure was mitigated to some extent by the respondent’s explicable misunderstanding of the court’s purpose in ordering the hearing and was motivated by the respondent’s laudable but misguided attempt to save costs. The judge was in the best possible position to assess the nature and effect of the directions order that he had himself made. He was entitled to conclude that the respondent did not understand the purpose of the linked directions, albeit it understood that it was required to attend. He had been entitled to conclude that the respondent just about had a reasonable excuse for its breach.
When considering all the circumstances of the case at the third stage, the judge had properly given particular weight to factors (a) and (b) in CPR 3.9(1) but he had also been entitled to take into account all the other circumstances, including the overall position in relation to the appellant’s case, the lack of prejudice to the appellant, the rights of the alleged victims and the limited extent to which court time had been lost. While, none of the other factors carried the particular weight that was to be accorded to factors (a) and (b), the judge had been entitled to conclude that the combination of all the circumstances was capable, on the facts of the case, of carrying sufficient weight to justify the grant of relief. In that regard, it had to be remembered that the judge was exercising discretion in the context of a case management decision and that such decisions were not lightly to be interfered with. Although the balance was a fine one, the judge had been entitled to come to the conclusion that he did: Denton v TH White Ltd [2014] EWCA Civ 906 applied.
Sally Blackmore (instructed by Miles & Partners LLP) appeared for the appellant; Charlotte Brazier (instructed by the legal department of Home Group Ltd) appeared for the respondent.
Sally Dobson, barrister
