The Civil Procedure Rules, in particular, CPR 3.9 set out the criteria that govern applications for relief from sanctions.

CPR 3.9 states that a Court must consider all the circumstances including the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, practice directions and orders.

Following the Jackson report, the rules were tightened with the intention that parties that default on Court Orders would be more readily punished.

In the wake of Mitchell v NGN [2013] EWCA Civ 1537 which set out further guidance including a two stage test on the harsher rules implemented, there appeared to be disorder within civil litigation generally. This was due to parties refusing to co-operate and therefore taking a harsher stance, which led to Courts being swamped with numerous applications for strike out.

New 3 Stage Test – Denton v TH White Limited [2014] EWCA Civ 90

In July 2014, the Master of Rolls sought to clarify the position following Mitchell in the case of Denton v TH White Limited [2014] EWCA Civ 90, as he believed the position had been misunderstood by some Judges in some Courts who had been taking an unreasonable approach.

The Master of Rolls therefore set out the following three stage test:

  1. Is the breach serious or significant? Whether there have been other minor breaches should not be considered at this stage.

It was held that multiple insignificant breaches do not amount to a serious breach. Multiple defaults could however be considered at the third stage, if it was necessary. If the breach is not significant then relief will usually be granted. If it is a serious default the Judge should then move on to consider stages two and three.

  1. The Judge should consider why the default occurred.The guidance in Mitchell is not a prescriptive list, merely examples. Even if the default was serious and there is no good reason for the breach, that does not mean the application will automatically fail. The Judge should always consider stage three.
  2. The Judge is required to consider all the circumstances of the case, so as to enable him/her to deal justly with the application.The two criteria as set out in CPR 3.9 above are of particular importance but they are not of paramount importance.

Applications for Relief – Going Forward

The new test set out in Denton therefore illustrates that although the two factors set out in CPR 3.9 are very important, these are not the only considerations. All the factors of the case must be considered. If the breach has prevented the Court or parties from conducting the litigation efficiently or the default has caused disproportionate costs then this will be a factor weighing in favour of refusing relief.

The Court also reminded parties that CPR 3.8(4) allows them to extend the deadline for compliance with Directions and Orders. The Court made it clear that parties should be cooperative and ready to agree such extensions.

In addition, parties must not seek to use the rules to gain an advantage by seeking strike out or sanctions where the breach was not serious. Contested relief from sanctions applications should be rare and exceptional.

The intention of the Denton decision is to bring civil litigation back to normality. Parties will, hopefully, begin to co-operate and be more willing to address any minor defaults between themselves.

However the Denton judgment still makes it clear that defaults which jeopardise Directions or trial dates are serious and may still result in a refusal for relief.

Lisa Wainwright is an Associate Solicitor and Head of the Dispute Resolution Department at BHW Solicitors in Leicester. Lisa can be contacted on 0116 281 6223 or by email at

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