Court of Appeal continues hardline approach

The Court of Appeal has continued its hardline approach to relief from sanctions post-Jackson (which started with Mitchell and continued with Durrant) with its latest decision in Thevarajah v Riordan & Ors [2014] EWCA Civ 15.

In this latest stance, the Court of Appeal has overturned the Chancery Division’s decision to grant relief from sanctions (made post-Jackson but pre-Mitchell in August 2013). In doing so, it found the lower court could not make an inconsistent order granting relief unless and until the original debarring order had been set aside by way of a variation or revocation under CPR 3.1(7).

Further, there had been no ‘material change in circumstances’ nor there was any other basis for an application under CPR 3.1(7) to vary or revoke the debarring order. The Court of Appeal found 'the deputy judge ought to have rejected the respondents’ second application under CPR 3.9 on the threshold ground that no proper basis had been put forward for revisiting [the order] refusing the first application for the same relief'. This judgment is of particular interest to parties involved in a claim where relief from sanctions has been refused or a debarring order made.

Practical implications

Before challenging a decision refusing relief from sanctions, carefully consider the most appropriate course(s) of action.

A further application for relief alone might constitute an abuse of process. This is because an application for relief from a sanction presupposes the sanction has, in principle, been properly imposed (Mitchell).

A contention that it was not appropriate to make the order can be by way of appeal or by asking the court, which imposed the order to vary or revoke it under CPR 3.1(7) (Mitchell and Tibbles). This application could be combined with a further application for relief from sanctions, provided the relief application is a 'secondary' one, which is only considered as and when the 'primary' application has succeeded.

As ever, any steps should be taken promptly.

This article was first published on Lexis®PSL Dispute Resolution on 17 January 2014. Click here for a free 24 trial of Lexis®PSL.

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