A well-known circuit judge has overturned a refusal to grant relief from sanctions to a party which filed its costs budget more than two months late.
His Honour Judge Gosnell in Bradford County Court also outlined his view that the fact a fresh hearing has to be arranged to deal with an application for relief and then, if successful, costs budgeting, “cannot be a conclusive reason for dismissing an application for relief”.
Though this was not what happened in the case before him, he said: “If that was the case, all separately listed applications for relief from sanctions would be effectively hopeless before they had begun. The need to list a fresh hearing is, however, clearly a factor which must be taken into account and weighed in the scales.”
Hewett v Smith and Anor concerned a road traffic accident where causation and quantum were in dispute. The claimant filed his costs budget more than two months late, eight days before the case and costs management conference (CCMC). The parties discussed the budgets during that time and the defendant only raised the delay at the hearing. As the claimant’s barrister had no instructions, District Judge Hickinbottom decided to adjourn consideration of an application for relief from sanctions until a hearing that turned out to be the next case management conference five months later.
At that, relying heavily on the Court of Appeal in Jamadar, he found no good reason for the default and restricted the budget to court fees only.
HHJ Gosnell – who gave the ruling the appeal court upheld in Jamadar – found that the district judge had placed too much weight on that case, “virtually considering that it bound him to refuse the application for relief from sanctions”. He said the present case could be factually distinguished from Jamadar – in the latter, the budget had not been filed by the CCMC, while a separate hearing had been required for the application for relief.
HHJ Gosnell said: “While the judge was entitled to take into account that the need for an application for relief from sanctions had taken up additional court time, he should have borne in mind that it was originally intended that it be dealt with as part of a pre-arranged case management conference where directions should be reviewed generally.
“I have explained why I am uncomfortable with the concept that the need to take up court time with a further application provides a knock-out blow against an application for relief from sanctions.
“This discomfort increases when the court reaches the conclusion (as I have) that the need for the adjournment of the hearing only arose because the respondents took a technical point on the appellant’s late filing of the budget in circumstances where they could have overlooked the delay and proceeding with the hearing without any prejudice to them. This would then have obviated the need for the adjournment and the subsequent application for relief.
“For these reasons, I have reached the conclusion that District Judge Hickinbottom was wrong to refuse the application for relief from sanctions as I think fairness demanded that it should be granted.”
However, HHJ Gosnell said he had “considerable sympathy” with the district judge. “He may well have not recalled the circumstances surrounding the adjournment of the original hearing and it may well have not occurred to him at the time that he had intended to deal with the application for relief at the same time he dealt with other case management decisions.
“With the benefit of all the history, however, I have reached a different conclusion and consider this is the right decision.”
HHJ Gosnell also said he could understand why the appellant felt the district judge was “somewhat unsympathetic” when he found that the appellant personally would not be prejudiced by a budget limited to court fees, even if his solicitors might be.
“The judge was technically correct but it would, I think, be right to consider prejudice incurred by the appellant’s solicitor by such an order, although I doubt it would carry much weight. I make that comment as this issue does not appear to have troubled the higher courts much when dealing with the many cases on relief from sanctions since Mitchell.”
The ruling was put in the public domain by Colin Richmond of Zenith Chambers, who acted for the claimant/appellant. He was instructed by Parker Bird Whiteley, while Ross Olsen, instructed by Keoghs, acted for the respondents.