Shill Properties Limited v Anne Bunch

Applications for relief from sanctions are determined by the three-stage approach in Denton v TH White Ltd: assess the seriousness and significance of the breach, identify the reason for it, and evaluate all the circumstances, including efficient and proportionate litigation and compliance with court orders.

The absence of prejudice, or the fact that refusal would prevent a party from proving its case, does not by itself justify relief. Repeated defaults, disruption to the trial timetable and an unexplained period of delay may make refusal proportionate. Conversely, relief may be granted where a breach is limited, promptly addressed, supported by a good reason and involves a party with no prior defaults. Compliance with CPR PD 57AC should ordinarily be secured by requiring compliant statements rather than excluding relevant evidence.

The claimant sought specific performance of an alleged contract for the sale of property. The defendant relied on alleged non-compliance with Law of Property (Miscellaneous Provisions) Act 1989, s 2, and misrepresentation.

At a pre-trial review, both parties sought relief from sanctions concerning late witness statements. The claimant sought permission to serve statements several months late. The defendant sought permission to rely on late statements and revised statements prepared to comply with CPR PD 57AC. The court determined the applications under CPR 3.9 and CPR 32.10.

1. Claimant’s application. The claimant’s breach in failing to serve witness statements by the ordered date was serious and significant. The proposed reasons, including mediation discussions and concerns about the defendant’s capacity, did not adequately explain the delay. No explanation or evidence was provided for the further four-month delay.
2. The court applied the approach in Denton v TH White Ltd. Although the absence of discernible prejudice and the fact that refusal would prevent the claimant from making out its case were relevant, neither factor was sufficient in itself to justify relief. The claimant’s earlier disclosure breaches, the resulting vacation of the previous trial date, the lack of evidence of prompt preparation and the delay in making the further application outweighed those considerations. Relief was refused.
3. Defendant’s late statements. The defendant’s 16-day delay was serious and significant, but at the lower end of seriousness. There was partly a good reason, the application was prompt and there had been no previous defaults. Relief from sanctions was granted.
4. Revised statements. The wholesale failure to comply with CPR PD 57AC was serious and significant. The court nevertheless granted permission to rely on the revised compliant statements. Their substance was largely unchanged, the defendant had substantially complied since 10 October 2022, and the sanctions in paragraph 5 were directed principally towards securing proper evidence rather than excluding it. Excluding the compliant statements would have been disproportionate and contrary to the purpose of the Practice Direction. Relief was also granted for the relatively minor additions.