Reed Smith Client Alerts

Key takeaways

  • In the case of Warren, the Court of Appeal has provided welcome clarification on application of CPR 3.9 and test for relief from sanctions
  • While there are now clearer procedural steps, the Court has maintained focus on compliance with procedural rules and efficient conduct of litigation
  • Ruling in Warren reiterates the Court’s wide discretion in these matters and highlights that parties’ conduct is key factor in how the Court will approach applications under CPR 3.9

Auteurs: George Hoare Christian Lally Natalie Hendy

Summary

With the start of the new Court term following the summer break, we take a look below at recent authorities that have shed light on the Court’s approach to the scope of the relief from sanctions regime under CPR 3.9 and when relief from sanctions and the subsequent Denton test will be required.

Since Denton was handed down a decade ago, the Courts have grappled with the application of CPR 3.9 extensively. While there may be some irony in this as Denton was heard because the Court of Appeal thought the judgment in Mitchell1 had been “misunderstood and is being misapplied by some courts”, recent authorities have been focused on a different issue – namely, whether a late application for expert evidence should be dealt with by way of relief from sanctions or by reference to the overriding objective.

In recent cases, the Court of Appeal has touched on the issue of when CPR 3.9 applies but stopped short of providing the clarification practitioners had been seeking.

The recent case of Yesss (A) Electrical Ltd v. Warren [2024] EWCA Civ 14 held that a claimant did not require relief from sanctions under CPR 3.9 where an application to rely upon expert evidence was made late. This contrasts with the position in relation to late witness evidence of fact, where the rules set out a specific sanction and so require an application for relief from sanctions.

The Courts have previously held that sanctions should be implied for breaches of certain court rules and orders where no express sanction exists, so that parties deemed to be in breach should apply for relief under CPR 3.9 and move through the steps of the Denton test (a reminder of which is set out below).

Despite this, it has not been clear how far this principle extends and when the Court will imply a sanction in circumstances where the CPR, practice directions or relevant court order is silent.