Lee Dixon, Costs Lawyer, PIC provides a go-to guide to help obtain relief from sanctions.
Breach an Order, Rule or Practice Direction that carries with it a sanction.
Recognise the breach as soon as possible. Do not ignore it; hope your opponent does not spot it; or shake your head, cross your arms and deny that it is a breach.
Try and find someone to blame, ideally someone junior. It won’t help but it means you don’t need to address the problem straight away.
Panic! This is inevitable but keep it short. Have a nice cup of Yorkshire Tea and a Hobnob, take a deep breath, brush the crumbs off your chest, and face the issue with steely determination, a clenched fist and the self-aggrandising opinion that, in fact, the entire system is wrong and corrupt, and you’re the victim; but not a passive one. This is the last time you can take this stance; from hereon in you must be a Saint.
Find and read Denton. The search for Relief begins there. Compare the three-stage test with your breach.
Utilise the single greatest development in research, prevarication and exhibitionism in the history of mankind; the internet. You will find help there. As an example, there is a superb resource here from St John’s Chambers, as authored by barristers Matthew White & Marcus Coates-Walker.
Move quicker. Speed is of the essence. Pre-Denton delay was often determinative. Post-Denton, the early signs were that this was no longer a stake to be driven through the heart of a Relief Application. However, the risk of prevarication remains very much alive and the longer you delay, the longer you watch the clouds drifting across the sky wondering whether or not they have a smell; the exponentially greater the chance it will lead to problems.
Instruct an expert to draft your Application for Relief. This is not always necessary, you can do it yourself, but it will take you a long time and finding someone else means you can pretend it didn’t happen for a while, whilst also providing a safe way to get a second opinion, and ensure that the application focuses on the facts rather than degenerating into a defence of, “well the rules are just stupid” or “I was just too busy doing real law” rant.
File and serve the Application, inviting your opponent to agree it. Now, this is important. Your opponent will probably cross their arms smugly and declare that they cannot consent to Relief. They will then either contest your application or take a neutral position. Depending on the seriousness of the breach, you can fire off a communication warning them that if they do not take proactive steps to ‘favour’ the application, then you will be seeking costs (see paras 40, 41 and 42 of Denton; para 65 and 76 of Long v Value Properties Ltd & Anor). This will make you feel a bit better.
Cross your fingers and attend Court, ideally with an expert in front of you, make your arguments and be contrite. Remember the Roman Republican approach to law; it matters not if you’re guilty but whether you can make yourself look sufficiently remorseful to elicit sympathy. A breach is a breach. The reason is vital, the timing important, the three-stage test determinative; but if you’re not contrite in the application or at any hearing of the application; then prepare for the headmaster’s cane.
Congratulations! You’ve either obtained Relief and can now put this all down to experience and forget about it within 3 months; or you’re in trouble and panicking again. If the latter, tea may not be strong enough…
To contact him about any of the issues raised in this blog, please click here!