Relief from sanction refused for failing to comply with old funding notification requirements

In Harrison & Harrison v Black Horse Ltd [2013] EWHC B28 (Costs) the Senior Courts Costs Office has refused relief from sanctions for failure to comply with the old funding notification requirements. In doing so the Master applied Mitchell and distinguished Forstater.

Breach was not trivial

He held the breach had not been trivial and that the claimants had not discharged the burden on them to prove there was good reason for the breach. In considering all the circumstances of the case, he also took into account some ‘secondary’ factors including the claimants' failure to make its application for relief from sanctions promptly.

The claimants' application before the court was for relief from sanctions following the automatic bar on their entitlement to recover any success fees under their CFA. This automatic bar arose following their failure to notify the defendant of their new funding arrangements in accordance with old Rules 44.15(2) and 44.3B.

Note:

• these funding notification provisions no longer apply following the introduction of the April 2013 Jackson Reforms. 

• as the application for relief was made after the introduction of the April 2013 Jackson Reforms, the 'new' CPR 3.9 applied to the application.

Relief from sanction application dismissed

In dismissing the claimants' application for relief from sanctions, the Master held:

  • the failure was not a trivial breach
    • [t]he rules required the Claimants to give notice of the change in funding arrangements and they did not do so in any form' (para [46]) (applying Mitchell and distinguishing Forstater)
  • the claimants were not able to prove a good reason for the breach
    • [paras 47-48] (applying Mitchell)

Factors of Secondary Relevance

In addition to these primary considerations above, the following factors were of secondary relevance when considering 'all the circumstances of the case':

  • the defendant had been prejudiced by the claimants' failure as it would have been given different settlement advice had it been aware of those funding arrangements. The Master did, however, note it was not possible to know whether the settlement itself would actually have been different (paras [40]–[41])
  • the claimants had delayed in making their application for relief from sanctions. Although the Master acknowledged his decision may seem harsh, he also observed that:
    • the court had suggested the claimants make a relief from sanctions application far earlier in the proceedings
    • the claimants' solicitors ought to have been aware of the impending Jackson Reforms and the likely effect they would have on any relief from sanctions application
    • there did not seem to be any good reason why the relief from sanctions application had not been made (and perhaps even heard) before the introduction of the new CPR 3.9
    • under the old Rule 3.9 'this would have been a borderline case for relief from sanctions' (para [42])

Court: Senior Courts Costs Office, High Court of Justice
Judge: Master Gordon-Saker
Date of judgment: 20 December 2013

This article was first published on Lexis®PSL Dispute Resolution on 10 January 2014. Click here for a free 24 trial of Lexis®PSL.

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