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Jonathan Addo
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Further guidance on relief from sanctions

By a recent judgment dated 18 November 2019, the High Court in England has provided useful clarification regarding relief from sanctions in the context of applications brought for extensions of time. In Maggistro-Contenta v O’Shea and Jury O’Shea LLP [2019] EWHC 3035 (Ch), the Claimant, Mrs Veline Hoie Maggistro-Contenta, accepted that, as a result of an error made by her solicitors, she failed to serve particulars of claim on defendant solicitors with the claim form, as required by the CPR, and did not do so until twenty one days later.

The claimant applied for an extension of time to serve the particulars of claim, which was opposed by the defendants, who in turn applied for a declaration that the Court had no jurisdiction to try the case, due to late service of the particulars of claim and, alternatively, for the strike out of the claim form for breach of the rules as to form and content.

It was common ground that although the claimant’s application did not expressly seek relief from sanctions, it was necessary for the application to be considered against the framework prescribed by CPR 3.9, as well as the Court’s general discretion to extend time limits under CPR 3.1(2)(a).

The Court addressed various complaints raised by the defendants in relation to the claim form, including that the details of claim were in places unintelligible and did not contain a concise statement of the nature of the claim in breach of CPR 16.2(1)(a). The Court accepted this and that a ‘kitchen sink’ style of drafting was unhelpful, stating that “the unhappy drafting of the claim form illustrates with great clarity why the particulars of claim must be served within the period for service.”

In considering the application, the Court endorsed the three-stage approach derived from Denton v White and other appeals [2014] EWCA Civ 906 and Mitchell v News Group Newspapers [2013] EWCA Civ 1537:

  1. The seriousness and significance of the breach

The Court accepted that the breach of the rules as to service was both significant and serious.

  1. Why did the default occur?

The Court held the reason for the breach to be the admitted error of the claimant’s solicitors, who mistakenly thought that the particulars of claim did not have to be served until fourteen days after service of the claim form.

  1. All the circumstances of the case

The Court considered the circumstances of the case, which it held included that the defendant should know the case being made against them as prescribed by the rules. The Court could, and in this case deemed it should, take into account the merits (or in this case, the lack thereof) of the claimant’s case.

The application for an extension of time was dismissed, and a declaration that the Court had no jurisdiction to try the case, was granted. It is unusual both in England and offshore jurisdictions, for the merits of a case to be taken into account by the Court when making case management decisions. However, this case is noteworthy because it is clear that where proceedings on their merits are susceptible to an application for summary judgment, the Court may well proceed down that path.

Further guidance on relief from sanctions

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