Wain v Gloucestershire County Council & Ors

Relief from a procedural sanction will usually be granted where the breach is trivial or insignificant and the application is made promptly. Whether a breach is trivial depends on its nature and consequences in the circumstances of the case. Relevant considerations include the length of the delay, prejudice, the parties’ ability to proceed, and any disruption to the court’s timetable. A one-day delay in serving a costs budget may be trivial where the hearing can proceed effectively, no prejudice is caused, and the court’s timetable is unaffected.

The claimant brought proceedings concerning flooding incidents affecting the claimant’s property. The fourth defendant had been served with the proceedings relatively shortly before the hearing and served her costs budget six clear days before the first case management and costs management hearing, rather than the required seven.

The claimant relied on Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and argued that the breach was not trivial. The fourth defendant made an oral application for relief from the sanction in CPR rule 3.14. The issue was whether the breach was trivial or insignificant and whether relief should be granted.

1. Relief granted. The fourth defendant was entitled to rely on the costs budget as served. The breach was one day’s delay in a seven-day period. The parties were able to deal with costs management at the hearing, the claimant suffered no prejudice, and the delay caused no disruption to the court’s timetable.
2. The approach in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 required the court first to consider the nature of the non-compliance. Relief will usually be granted where the breach is trivial, provided the application is made promptly. A narrowly missed deadline, with otherwise full compliance, may amount to an insignificant failure.
3. The significance of a breach cannot be assessed in isolation from its consequences. The court should consider the particular circumstances, including prejudice, whether the parties can deal with the material at the hearing, and whether the breach disrupts the court’s timetable. The interrelation between the breach and its consequences was supported by the reasoning identified in Aldington & 133 Others v Els International Lawyers LLP [2013] EWHC B29.
4. The alleged earlier breaches were not established. The costs-budget breach was therefore treated as isolated. Although no good reason had been advanced for the delay, that was immaterial because the breach was trivial or insignificant. The court accordingly made an order under CPR rule 3.14 permitting reliance on the budget.