Evans v Pinsent Masons LLP

Relief from sanctions is discretionary. The court must assess not only the length and significance of the delay, but also whether the applicant acted promptly once the need for relief became apparent and whether the evidence placed before the court is reliable and complete.

Where the application for relief is supported by materially inaccurate or misleading evidence, and the opposing party has not been given a proper opportunity to respond, the court may set aside an earlier grant of relief. A short delay and the absence of disruption to the litigation do not by themselves justify relief.

The defendant applied for oral reconsideration of an order by Nicol J granting the claimant relief from sanction and extending time to renew an application for permission to appeal.

The claimant had applied two days out of time. The original application for relief stated that the delay was only two days and that the claimant’s solicitors had acted promptly once the delay was brought to their attention. The defendant contended that this evidence was materially inconsistent with the earlier letter requesting the oral hearing and that the letter had not been served on the defendant.

The central issue was whether relief from sanction should have been granted in light of the full evidential position.

1. Outcome. The court allowed the defendant’s application, overturned Nicol J’s order and refused relief from sanction.
2. Relief from sanction is a matter for the court’s discretion. In exercising that discretion, the court must consider the period and significance of the delay and whether the solicitor acted promptly once the need for relief became apparent.
3. The claimant’s evidence did not adequately explain the calculation of time or the inconsistency between the letter of 30 May and the witness statement of 6 June. The assertion that the firm had applied promptly once the delay was identified was accepted to be untrue.
4. The evidential problem was compounded because the claimant’s solicitors had not served the 30 May letter on the defendant. The defendant was thereby deprived of a timely opportunity to make representations about the application being out of time.
5. Although the delay was short and did not disrupt an existing hearing, those factors were insufficient in the circumstances. Had Nicol J known the full position and considered the matters identified in this judgment, he would not have exercised the discretion to grant relief.

• High Court (Queen’s Bench Division): Nicol J granted relief from sanction and extended time on 11 June 2019. On reconsideration, the present court overturned that order and refused relief.