CPR3.9 Refusal of relief from sanction - solicitors negligence claim now pending

In Venulum Property Investments Ltd v Space Architecture Ltd & Ors, an application was made for permission to extend time for service of the Particulars of Claim as a result of the Claimant's solicitors misreading the relevant rule and failing to serve the Particulars within time.

The result – if relief was not granted - would be that an action against one set of the defendants would be statute barred.

In reaching its decision, the Technology & Construction Court (TCC) carefully followed previous caselaw which sets out the various factors which have to be taken into account when exercising its discretion. It was common ground between the parties that the new wording to CPR 3.9 (relief from sanction) brought in from 1 April 2013 had been intended to bring about a radical change in culture by courts and court users. The Court also noted the change to the overriding objective in CPR1.1(f) which requires it to have due regard to "enforcing compliance with rules, practice directions and orders".

Judge Edwards-Stuart decided that the Court must now "take a much stronger and less tolerant approach to failures to comply with matters such as time limits". As a result, the Court held that on consideration of the particular facts, including that the Claimant delayed more than 5 years before instructing solicitors to investigate and bring a claim and that the matter was "finely balanced", the application for relief should be refused. The TCC continues to show itself a keen, even aggressive, proponent of the Jackson reforms and it is used to adopting a leadership role on rule changes and innovations.

Comment

(1) The refusal of relief from sanction under new CPR3.9 illustrates the danger for all litigators in mis-reading a rule or missing a time limit and underlines the importance both of careful supervision and strict diary management.

(2) Those seeking relief from sanction should check the detail of this judgment and in particular should give full reasons for any delays or difficulties in bringing the claim in the first place.

(3) Until solicitors and their clients get used to the new rule and the courts' tougher approach, then its operation is likely to generate a significant number of solicitors negligence claims.

Venulum Property Investments Ltd v Space Architecture Ltd & Ors