Case management - Non-compliance with orders, sanctions, and relief

Learning Outcomes

After reading this article, you will be able to explain the consequences of non-compliance with court orders in civil litigation, identify the range of sanctions available to the court, and outline the procedure and principles for seeking relief from sanctions. You will also be able to apply these concepts to practical SQE1-style scenarios and avoid common pitfalls in case management.

SQE1 Syllabus

For SQE1, you are required to understand the court’s powers to manage cases, the consequences of non-compliance with procedural rules or court orders, and the process for seeking relief from sanctions. Focus your revision on:

• The court’s general case management powers under the Civil Procedure Rules (CPR)
• Types of non-compliance and their impact on proceedings
• The range of sanctions available to the court, including costs, unless orders, and striking out
• The principles and procedure for applying for relief from sanctions, including the Denton test
• The importance of promptness and evidence when seeking relief

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is an “unless order” and when might the court use it?
2. Name three possible sanctions the court may impose for non-compliance with a court order.
3. What are the three stages of the Denton test for relief from sanctions?
4. True or false? The court will always grant relief from sanctions if the breach was not intentional.

Introduction

Case management is central to civil litigation in England and Wales. The court actively manages cases to ensure they are dealt with justly and at proportionate cost. Compliance with court orders and procedural rules is essential for the efficient progress of litigation. Failure to comply can result in serious consequences, including sanctions that may affect the outcome of the case. However, the court has discretion to grant relief from sanctions in appropriate circumstances.

Non-compliance with Court Orders

Non-compliance occurs when a party fails to meet a deadline, ignores a procedural requirement, or otherwise breaches a court order. This can disrupt proceedings, cause delay, and prejudice other parties.

Key Term: non-compliance
Failure by a party to comply with a court order, procedural rule, or direction.

The court expects parties to comply with all orders and directions. If a party cannot comply, they should seek an extension by agreement (up to 28 days if it does not affect a hearing date) or apply to the court for more time.

Consequences of Non-compliance

When non-compliance occurs, the court may:

• Impose a sanction automatically (if specified in the order or rule)
• Make an “unless order” giving a final opportunity to comply
• Apply a sanction after considering an application from the other party

Key Term: unless order
A conditional court order stating that unless a party complies with a specified requirement by a set deadline, a stated sanction will apply automatically.

Sanctions are designed to enforce compliance, deter future breaches, and protect the integrity of the court process.

Types of Sanctions

The court has a wide range of sanctions available under the CPR. The choice of sanction will depend on the seriousness of the breach and its impact on the proceedings.

Key Term: sanction
A penalty imposed by the court for failure to comply with a rule, order, or direction.

Common sanctions include:

• Costs orders (requiring the defaulting party to pay the other side’s legal costs)
• Interest penalties (adjusting interest on damages)
• Unless orders (see above)
• Striking out all or part of a statement of case (removing a claim or defence)
• Debarring a party from relying on evidence or calling witnesses
• Staying proceedings (pausing the case until compliance)
• Dismissing a claim or defence

Key Term: striking out
The removal of all or part of a party’s statement of case by court order, often ending that party’s claim or defence.

Principles for Imposing Sanctions

When deciding whether to impose a sanction, the court will consider:

• The seriousness and significance of the breach
• The reasons for the default
• The need for litigation to be conducted efficiently and at proportionate cost
• The need to enforce compliance with rules, directions, and orders
• All the circumstances of the case

Sanctions must be proportionate to the breach and fair to both parties.

Worked Example 1.1

A claimant fails to serve their witness statements by the deadline set in a directions order. The court issues an unless order stating that unless the statements are served within 7 days, the claimant will be barred from relying on any witness evidence at trial. The claimant still does not comply.

Answer: The sanction in the unless order takes effect automatically. The claimant cannot rely on any witness evidence at trial, which may severely weaken their case.

Relief from Sanctions

A party subject to a sanction may apply to the court for relief under CPR 3.9. Relief from sanctions is not automatic and is granted only if the court is satisfied that it is just to do so.

Key Term: relief from sanctions
A court order removing or varying a sanction imposed for non-compliance, allowing the defaulting party to proceed.

The application must be made promptly and supported by evidence explaining the reasons for the default.

The Denton Test

The leading authority on relief from sanctions is Denton v TH White Ltd [2014] EWCA Civ 906. The court applies a three-stage test:

1. Assess the seriousness and significance of the breach.
2. Consider the reasons for the default.
3. Evaluate all the circumstances of the case, including the need for efficient litigation and compliance with rules.

If the breach is neither serious nor significant, relief is likely to be granted. If it is serious, the court will look closely at the reasons and the overall context.

Worked Example 1.2

A defendant’s solicitor misses the deadline to file a costs budget by one day due to an administrative error. The other party applies for a sanction limiting recoverable costs to court fees only. The defendant applies promptly for relief from sanctions, explaining the error.

Answer: The court will consider whether the breach is serious or significant. A one-day delay with no impact on the timetable is likely to be regarded as neither serious nor significant, so relief from sanctions will probably be granted.

Exam Warning

If a party fails to apply for relief promptly after a sanction takes effect, the court may refuse relief even if the breach was not serious. Delay can be fatal to an application for relief.

Revision Tip

Always check whether the breach has affected any hearing date or prejudiced the other party. Minor breaches with no impact are more likely to be excused.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The court actively manages cases and expects strict compliance with orders and rules.
• Non-compliance can result in a range of sanctions, including costs, unless orders, and striking out.
• Unless orders give a final opportunity to comply before a sanction is imposed automatically.
• Relief from sanctions is available but only at the court’s discretion and must be applied for promptly.
• The Denton test guides the court in deciding whether to grant relief from sanctions.
• Minor breaches with no impact on the timetable or other parties are more likely to be excused.

Key Terms and Concepts

• non-compliance
• unless order
• sanction
• striking out
• relief from sanctions