Utilise Tds Ltd v Davies & Ors

For relief from sanctions, the court must first characterise the relevant non-compliance. A deadline missed by a short period may be trivial when viewed alone. However, other breaches of the same order may be considered in deciding whether the overall non-compliance is trivial. Separate breaches may therefore make a breach non-trivial where they show wider failure to comply with the order. If the combined defaults are non-trivial, the applicant must provide a good reason for them. Promptness in seeking relief is also material. A first-instance case-management decision will not be disturbed unless it was wrong or affected by a serious procedural irregularity.

The claimant appealed from District Judge Matharu’s refusal on 2 January 2014 to grant relief from the sanction imposed under CPR 3.14. The sanction limited the claimant’s costs budget to court fees after its form H was filed by fax 41 minutes late. The claimant also notified the court of the outcome of settlement discussions 13 days late, contrary to another paragraph of the same order. The appeal raised whether a breach trivial in isolation could become non-trivial because of another trivial breach, and whether the District Judge had properly applied Mitchell v News Group Newspapers Ltd and CPR 3.9.

1. Permission and disposition. Permission to appeal was granted because the appeal had a real prospect of success, but the appeal was dismissed. The lower court’s decision could be disturbed only if it was wrong or unjust because of a serious procedural or other irregularity under CPR 52.11(3).
2. The original notice of proposed allocation did not require costs budgets to be filed with the directions questionnaires. The District Judge was wrong on that point. Nevertheless, she was entitled to make the order of 2 October 2013 requiring the budgets to be filed, and the claimant was required either to challenge that order or comply with it.
3. Applying Mitchell v News Group Newspapers Ltd and Durrant v Chief Constable of Avon & Somerset Constabulary, the filing of form H 41 minutes late was trivial when considered in isolation. But the claimant had also failed to notify the court of the outcome of negotiations within the same order’s deadline. The court was entitled to consider that additional breach when assessing the character of the breach attracting the sanction. Viewed together, the defaults were non-trivial and required explanation or a good reason.
4. The claimant provided no explanation for either default. The application was also not made promptly: the correct factual basis was not advanced until the witness statement of 18 December 2013. That delay independently justified refusing relief. The court rejected the contrary approach in Lakatamia Shipping Co Ltd v Nobu Su, to the extent that it treated earlier separate defaults as irrelevant, describing it as expressed per incuriam.
5. The errors concerning the original notice did not vitiate the District Judge’s discretion, which was independently supported by the second breach and the absence of explanation. Costs of £4,111.05, including irrecoverable VAT, were proposed for summary assessment against the claimant in favour of the second defendant; no order for costs was made in favour of the other defendants.

• District Judge Matharu: On 2 January 2014, refused relief from sanctions under CPR 3.14 and refused permission to appeal.
• High Court (Chancery Division): Granted permission to appeal but dismissed the appeal. Costs were ordered in favour of the second defendant, with no order for the other defendants.