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WITHDRAWAL OF PRE-ACTION ADMISSIONS – JUDGES SHOULD RESIST THE TEMPTATION TO CONDUCT A MINI-TRIAL
Zenith'sBronia Hartley writes:Newham London Borough Council v Arboleda-Quiceno QBD(Lambert J) 31/07/2019The defendant local auth...
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Nicola Phillipson TEP
Vladimir Sloutsker v Olga Romanova
[2015] EWHC 545 (QB)
Relief from sanctions was sought for late service of evidence. Applying the Denton test, the court held that the breach was serious. The explanation for the breach was “straightforward but unimpressive”. On the day the evidence should have been served, most of the day had been taken up with finalising the evidence, and the solicitor’s attention was then required on urgent matters in other cases;
In short, a combination of late finalisation, mistakenly prioritising the filing of papers with the court over service on the defendant, and oversight due to other work. On this evidence [Counsel for the Applicant] is entitled to say, as she does, that there is no question of the failure involving any deliberate flouting of the order or the rules. But she is right to accept that it is no excuse that the solicitors had too much work on. No good reason is provided for the breach.
Despite the lack of a good reason, when all of the other factors were considered (not at the extreme end of seriousness, not deliberate, no serious effect upon the efficient progress or cost of this or other litigation, very short delay in service) relief was granted, with the court noting that, post Denton, Compliance is not an end in itself. A more nuanced approach is required.
Comment
This case follows a general trend of cases post Denton where the focus has returned to the practical effect of the breach, with cases once again becoming much more fact specific. Whilst this approach is to be welcomed, all practitioners, whether overworked or otherwise, are of course advised to comply with rules, practice directions and orders wherever possible, and to seek an extension of time in advance of any breach.
