Old breaches, new bite (Michael v Middleton)

DR Analysis on the recent decision in Michael v Middleton [2013] EWHC 2881 (Ch), an application for relief from sanctions under CPR 3.9(1) dismissed.

This case confirms, among other things:

  • the new Rule 3.9(1), introduced under the April 2013 Jackson Reforms, applies to breaches committed before 1 April 2013
  • the pre-April 2013 Rule 3.9 ‘checklist’ is still relevant and will be used when the court considers ‘all the circumstances of the case' (applying Thevarajah v Riordan & others [2013] EWHC 3179 (Ch))
  • in determining an application for relief from sanctions, the court should focus on the 'overall justice of the application' and the 'need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and orders' (CPR 3.9(1))
  • the intention of the new Rule 3.9 is to introduce a more restrictive regime for relief from sanctions and a stronger focus on compliance. As such, '...the court should be less ready to grant relief under the new rule …’

Practical tips arising from this case include:

  • consider whether any 'old' breaches may be sanction-able under the 'new' rules
  • rather than wait until any relief from sanctions stage, resist any unless order application strenuously and/or, if one is made, consider appealing it
  • ensure your conduct throughout the proceedings cannot be described as 'appalling', 'inefficient' or something equivalent
  • resist failing to comply for tactical reasons
  • when seeking relief, ensure you have taken all steps to remedy (or be able to remedy) the default
  • consider whether there is in fact any prejudice to the party whose case has been struck out
  • consider whether it might be easier to simply ‘start again’ with a properly pleaded case and a clean slate

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Court Details:

Court: Chancery Division, Birmingham District Registry
Judge: Judge David Cooke, sitting as a High Court Judge
Date of judgment: 19 August 2013

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