Guidance on the new CPR r.3.9 by Simon Davenport QC and Sarah Ramsey

14 November 2013

Thevarajah v Riordan & Others [2013] EWHC 3179 (Ch)

Simon Davenport QC and Daniel Lewis appeared for the applicant defendants in this application for relief from sanctions under CPR r.3.9. This case provides important guidance on how the courts will approach applications for relief under the new CPR r.3.9.

The underlying claim arose out of the alleged sale of one public house and purchase of shares in another such property. The respondent had commenced substantive proceeding and had obtained a worldwide freezing order against the applicants and a further disclosure order in the form of an unless order.

At a previous hearing on the 9th August 2013, the applicants had been struck out for failure to comply with their disclosure obligations as set out in an unless order. The court had refused to grant the applicants relief from sanctions.

The applicants applied again under CPR r.3.9, submitting that they had now complied with the disclosure requirements, that the breach of the unless order had been remedied, and that failings in disclosure were partly due to their former solicitors. The respondent submitted in turn that this second relief application was an abuse of process as it sought to litigate issues that had already been determined.

The application was granted. Although the applicants had brought the application under the new r.3.9, the matters in the old r.3.9 remained relevant. Relief would not be refused if that would be a disproportionate response. The new rules had been brought in to counter the culture of deliberate delay, but the principle was justice between the parties, and minor errors could not be exploited for tactical gain. It was appropriate to grant the applicants relief from sanctions; the fact that the applicants had now complied with disclosure obligations which were significant and wide-ranging and the fact there was no evidence of wilful non compliance amounted to a material change in circumstances. The second application was not an abuse of process and was successful.

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