Jackson v Thompsons Solicitors (a firm) & Ors

Relief from sanctions under CPR 3.9 requires a structured three-stage inquiry: the seriousness and significance of the breach, the reason for it, and all the circumstances of the case. The court must balance efficient, proportionate litigation and compliance with procedural rules against dealing with the application justly. A breach may lack seriousness or significance where delay has not affected the conduct of the litigation or caused material prejudice. The consequences of granting relief are distinct from the seriousness of the breach. Promptness and other procedural defaults remain relevant. The approach in Denton v TH White governs the inquiry, while the earlier approach in Mitchell v News Group Newspapers must be understood in that light.

The defendants’ solicitors sought relief from sanctions after serving late notices of conditional fee agreements concerning Lord Prescott’s solicitors and counsel. The notices did not initially provide all required information, including the dates of two agreements. The application concerned the consequences of non-compliance with CPR 44.15(2) and the costs practice direction, principally the possible irrecoverability of success fees. The claimant opposed relief, relying on the lateness and continuing deficiencies. The central issue was whether, applying CPR 3.9, relief should be granted in relation to the solicitors’ CFA and the two counsel CFAs.

1. Relief granted. The court granted relief against sanctions in relation to the solicitors’ CFA and both counsel CFAs. Further information about the dates of the counsel agreements was to be provided by witness statement.
2. CPR 3.9 required the three-stage approach identified in Denton & Ors v TH White Limited & Ors [2014] EWCA Civ 906: first, assess the seriousness and significance of the breach; secondly, consider why it occurred, including whether there was a good reason; and thirdly, evaluate all the circumstances so as to deal with the application justly. The need for efficient and proportionate litigation and the need to enforce compliance must both be considered. Promptness and other breaches are relevant circumstances.
3. The late notification of the solicitors’ CFA was not serious or significant. It had no effect on the conduct of the case, had not impacted on other court users, and the claimant identified no material prejudice from the delay. The seriousness of the breach was distinct from the seriousness of the consequences for the claimant if relief were granted. The court relied on the approach illustrated by Antonio Caliendo & Ors v Mishcon de Reya (a firm) & Ors [2014] EWHC 3414 (Ch).
4. No good reason beyond oversight was advanced, and the application was not made promptly. Nevertheless, the overall circumstances favoured relief. The court rejected the submission that delay in applying should attract the stricter approach associated with Mitchell v News Group Newspapers Limited [2014] 1 WLR 795; the more recent decision in Denton had explained that Mitchell had been misunderstood.
5. The same balancing exercise applied to the counsel CFAs. Their deficiencies had been raised very late, the claimant’s solicitors had received information indicating that CFAs existed without responding, and the issue had not previously appeared to give rise to any objection. In the circumstances, relief was granted.