Stephen Warner v John Merrett, Judge Mackie QC, 12/06/2014 (unreported)
In this matter, the receiving party had served their Bill of Costs in assessment proceedings, without providing details relating to additional liabilities for both Solicitor and Counsel’s success fees and an ATE premium, contrary to the requirements of CPR PD 43-48. The Defendant had therefore contended in their Points of Dispute that pursuant to CPR 44.3B(1) the additional liabilities were not recoverable unless the Court ordered otherwise. Following service of the Points of Dispute, the receiving party immediately supplied the required documentation and applied for relief from sanctions.
The Court considered whether the failure amounted to a ‘trivial breach’.
Although Mitchell provides guidance on how to apply the new Rule 3.9, the Judgment should not be applied like a rule or Statute. It was necessary to look at the context and effect of the breach. The breach was of a general kind and not a total failure, and the consequence of the breach had caused inconvenience to the paying party, but not the Court. There had been no breach of Court Order, no history of default and the receiving party’s Solicitors had acted immediately when they became aware of the omission. In the context, the breach was trivial. Relief granted.
Although an unreported decision, this case does give more useful guidance on how Mitchell is being applied by the Courts. It is of utmost importance that steps are taken to comply with any Order, Rule or Practice Direction. However, where any omission or failure to comply does occur, prospects of obtaining relief are far better if immediate action is taken.