Derina Tetla Phipps v Bruce Constantine Goulbourne

Relief from sanctions is assessed by the three-stage approach in Denton: seriousness and significance, good reason, and all the circumstances, with particular weight given to efficient litigation and compliance with court orders.

A breach may be serious or significant even without disrupting a timetable. In the Rolls Building jurisdictions, a legally represented claimant must serve the sealed claim form; providing an unsealed copy is insufficient. A solicitor’s mistaken belief that the court would serve the claim form is not a good reason. Probate claims receive no special exemption from procedural discipline. Where an unless order gave a final opportunity to issue and serve a claim, and the claim form’s validity has expired, relief may properly be refused where granting it would undermine the order.

The claimant, the deceased’s daughter and sole beneficiary under an allegedly lost will, sought relief from sanctions. An unless order required her to issue and serve a probate claim within 28 days, failing which a grant would issue as if the will were invalid.

She issued the claim form in time but did not serve the sealed claim form until after both the deadline in the unless order and the four-month service period had expired. She argued that her solicitors had mistakenly expected the court to serve the documents and that refusal would prevent her from propounding the will. The central issue was whether relief from the sanction should be granted.

1. Application refused. The claimant’s failure to serve the claim form within the time required by the unless order was serious and significant. The claim form was issued in time, but service of an unsealed copy was invalid and insufficient. The relevant breach was the failure to serve the claim form, not the failure to issue it.
2. The court applied the three-stage approach in Denton v TH White Ltd: assess seriousness or significance; determine whether there was a good reason; and consider all the circumstances, giving particular weight to efficient litigation at proportionate cost and enforcement of rules, practice directions and orders.
3. The absence of disruption to a trial timetable did not make the breach insignificant. Breach of an unless order is an important indicator of seriousness, although not every such breach is necessarily serious or significant.
4. No good reason was shown. The claimant’s solicitors should have known that, under Practice Direction 51O, documents issued through electronic working which require service are to be served by the parties. Their mistaken belief that the court would serve the claim form, and their delay in contacting the court, could not justify the default.
5. The court considered all the circumstances. The unless order provided a final opportunity to propound the will after substantial time had already been available. The application for relief was not prompt, the claim form had ceased to be valid under CPR r. 7.5(1), and granting relief would substantially undermine the purpose of the unless order. The fact that the default was attributable to solicitors, rather than personally to the claimant, was not determinative.
6. The fact that the claim was a probate claim did not justify a special procedural rule. The sanction was proportionate, notwithstanding the serious personal consequences for the claimant. Relief from sanctions was therefore refused. Consequential matters were left for a further hearing.