Another bite at the cherry? Relief from sanctions & changes of circumstances

The courts’ approach to relief from sanctions is something on an ongoing saga of complexity and appeal, as the disparate permutations the new so-called ‘Jackson Reforms’ present themselves in apparently (at least to the Rules Committee) unforeseen ways.

The Supreme Court last month heard an appeal in the case of Thevarajah (Respondent) v Riordan and others (Appellants) [2015] UKSC 78 which concerned whether a party wishing to make another application for relief from sanctions was simply able to have another bite of the cherry with another judge.

The Court of Appeal reversed the decision of a Deputy High Court Judge who heard and granted the Defendants relief against a order debarring their defence of the Claimant’s Claim. The Court of Appeal’s held the second application should not have been considered on its merits because the Appellants were to show that there had been a material change of circumstances since the hearing of the first relief application.

The Appellants appealed to the Supreme Court.

Lord Neuberger gave the sole opinion of the court which with which the other Justices (Lord Mance, Lord Clarke, Lord Sumption and Lord Hodge) agreed.

It was held that it was – if not a rule per CPR 3.1(7) – than a matter of ordinary principle that a second application for relief should only be entertained had there been a material change in circumstances (following Tibbles v SIG plc [2012] Civ 518). Secondly, it was held that late compliance does not in itself amount to a said material change in circumstances.

The lesson for parties applying for relief is of course to ensure that the first application for the same is as strong as possible and unless matters were to be materially altered in the meantime (it is difficult perhaps to think of an obvious example), the route for redress is to an appeal court.