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Civil Litigation Section

Thevarajah v Riordan [2014] EWCA Civ 15

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What’s happened?

This case concerns the defendant’s failure to comply with an unless order for disclosure. At the first hearing, an application for relief from sanctions was refused.

The defendants made a second relief from sanctions application, which took up four of the five days allocated to the trial. That second application was allowed.

The claimant then appealed. The Court of Appeal refused to grant the defendant relief from sanctions.

Why is it important?

This case reaffirms the rigorous approach the Court of Appeal is taking towards relief from sanctions applications. It also provides clear guidance on the proper form of any second relief from sanction application.

How does this fit into existing case law and practice?

In reaching its decision, the Court of Appeal considered the correct application of CPR 3.1(7) and CPR 3.9.

It concluded that the deputy judge had been wrong in holding that “a second application for relief from sanction could be made under CPR 3.9 without needing to rely on CPR 3.1(7) and that CPR 3.1(7) had no more than a secondary role”.

  • This put matters the wrong way round.
  • The debarring order had already taken effect.
  • The first consideration had to be whether the order could be varied or revoked under 3.1(7).
  • It was not open to the judge to make an inconsistent order granting relief under CPR 3.9, and this did not stop the original order having effect.

In what ways does this affect practitioners?

Before making a second application for relief, parties should ask themselves whether the conditions (set out in Tibbles v SIG plc [2012] EWCA Civ 518) for varying or revoking an order are made out. Parties will not be allowed a ‘second bite of the cherry’ and relief from sanctions will be given sparingly.

  • Has there been a material change of circumstances since the order was made?
  • Where the facts on which the original decision was made innocently or otherwise misstated?

What, if anything, should I be doing differently as a result?

  • A second relief from sanctions application is possible, but will be construed as an application pursuant to CPR 3.1(7). It will only be granted if the Tibbles criteria are satisfied. Make sure you make the right application.
  • Remedying a breach will not amount to a material change of circumstances.
  • The timing of the application is a significant factor. You have to make CPR 3.9 and 3.1(7) applications promptly.

Bailii judgment

Disclaimer

While we try to ensure the accuracy of the information provided, it does not constitute legal advice, and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.

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