During lockdown, Roundel Legal Costs Solicitors set a Bill of Costs down for Detailed Assessment on behalf of the Claimant. Amongst the various issues to be dealt with, there was a contentious issue relating to the correct basis of costs. The Court, of its own motion, made an Order requiring the Defendant to re-draw their Points of Dispute to be in accordance with Precedent G of the Practice Direction (on account of the Points being rambling and discursive).
The Defendant omitted to comply with that Order, so Roundel Legal Costs wrote to the Court which made an Unless Order in response. Again, the Defendant failed to comply, so we wrote to the Court again, with the Court assessing the Bill as drawn and making an award for the Claimant to recover their costs of assessment.
The Defendant made an Application for Relief from Sanctions supported with re-drawn Points of Dispute. The Application alluded to the current environment; stated that the Defendant had not complied previously but had done so now and made general observations about the Bill and how crucial the Points in Dispute were and that the differences between the parties were significant.
The Court's response
The Court listed the matter for a hearing where the Defendant’s Application was heard. Various arguments were made on behalf of the Claimant including that the Defendant had not satisfied the appropriate tests for relief from sanctions. The Defendant’s Application was dismissed with costs being awarded to the Claimant.
Crucially the Defendant in submitting their Application had not paid attention to the appropriate law and the correct way to formulate their arguments. They had not referred to or made any specific attempt to satisfy the three tests required for relief.
The appropriate approach for relief from sanctions was considered in the case of Denton and others v TH White and others  1 WLR 3926, which confirmed that there was a 3-stage test for the granting of relief. Stage 1 concerns the materiality or triviality of the breach. Stage 2 concerns whether there is a good explanation for the default. Stage 3 requires the court to consider all the circumstances, but with particular weight given to paragraphs (a) and (b) of the rule.
Had the Defendant paid more attention to the law and satisfying the Court in relation to the tests, then the outcome may have been very different. The exceptional and unforeseen circumstances in which we have been living could have provided potentially ample reasonable justification for default.
Instead, the Defendant was unprepared for the application of the law at the hearing. The general and unformulaic arguments which were advanced were insufficient to satisfy the Court in the first instance and representations at the hearing were not enough to persuade the Court that the tests had been met.
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