Kimathi & Ors v The Foreign and Commonwealth Office

Relief from sanctions under CPR rule 3.9 requires a structured assessment of the breach, the reason for it and all the circumstances of the case. A breach is serious or significant where it threatens hearing dates or disrupts the litigation. A party’s mistaken interpretation of an order may explain the default, but will not necessarily constitute a good reason. Promptness is assessed from the breach, although the party’s lack of wilfulness may be relevant. The court must give particular weight to efficient, proportionate litigation and compliance with rules and orders. Relief may be granted for individual documents where their probative value justifies admission without substantial additional work, cost, prejudice or disruption.

The claimants, in extensive test-case proceedings against the Foreign and Commonwealth Office, sought relief from sanctions so that they could rely on documents omitted from lists required by orders made on 31 March and 30 June 2017. The documents were intended for closing submissions in individual test cases. The defendant objected to documents which were not listed for the relevant test claimant, were said to support unpleaded changes of case, or would require substantial further investigation.

The application followed the court’s earlier ruling that the claimants had breached the orders and therefore required relief under CPR rule 3.9. The central issue was whether relief should be granted document by document, having regard to the seriousness of the breach, the explanation for it, the promptness of the application, prejudice, and the effect on the trial timetable.

1. Relief from sanctions. The application was governed by CPR rule 3.9 and the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ.906. The court had to assess the seriousness and significance of the breach, identify why it occurred, and evaluate all the circumstances, giving particular weight to efficient and proportionate litigation and compliance with orders.
2. The failure to list documents for the relevant test cases was serious and significant. It concerned a substantial number of documents, had occurred months earlier, and threatened considerable additional work and disruption across 25 test cases. The proper focus was materiality, including whether the breach imperilled hearing dates or otherwise disrupted the conduct of the litigation.
3. The claimants genuinely misunderstood the effect of the March and June orders. That explained the default and showed that it was not wilful, but it was not a good reason for the breach. The application was also not prompt merely because the claimants applied soon after discovering their mistake; promptness was assessed by reference to the breach itself.
4. Lakatamia Shipping Co Ltd v Nobu Su [2014] EWHC 275 (Comm) did not assist. Its outcome depended on the wording of the order and the triviality of the particular breach. Singh v Thoree [2015] EWHC 1305 (QB) did not establish that the mistake there supplied a good reason because the relevant stage of the Denton analysis was unclear. The approach was consistent with Jamadar v Bradford Teaching Hospitals NHS Foundation Trust [2016] EWCA Civ.1001.
5. The court considered each document individually and cumulatively. Relief was refused where relevance or importance was not demonstrated, where the document supported an unpleaded change of case, or where admission would create disproportionate research, cost or disruption. Relief was granted for a small number of documents, including documents with possible substantial probative value that would not materially disrupt the trial. Agreed relief was approved where the documents would not cause substantial further disruption.

not stated in the judgment.