Applications for breach of sanctions, prior to Denton v TH White Limited , often suffered harsh decisions and unjust consequences. The judgment in Denton manifests a more proportionate and just consideration of applications for breach of sanctions, encouraging parties to co-operate and address minor defaults between themselves. The 3-stage test, as provided in Denton will likely aid applications for relief from sanctions which would otherwise be dealt with unjustly.
The 3-stage test introduced in Denton requires the court to:
1) identify and assess the serioussness and significance of the non-compliance
2) consider why the breach occurred
3) evaluate all circumstances of the case so the application is dealt with fairly
At stage 1, discretion will be exercised to ascertain whether the breach is serious or significant. Serious or significant breaches may include, the failure to pay court fees and the failure to comply with an unless order, but are by no means limited to these. At this stage, sanctions should be considered separately in cases where there are multiple breaches. If it is decided at this stage that the breach in question is neither serious nor significant then there is no need to consider the other 2 stages or to issue an application.
If the breach is considered serious or significant, the second stage will assume greater importance and the court will assess why the breach occurred. Trivial reasons, such as simple mistakes or merely overlooking a deadline, are unlikely to be considered good enough reasons for the occurrence of a significant or serious breach.
At the third stage, the court should consider all circumstances of the case. These include whether the sanction imposed is proportionate to the breach, how long after the breach occured before the application for relief from sanctions was made and whether other current or previous breaches have been committed.
Denton provides guidance as to how application for relief from sanctions will be considered and assessed by the courts, however these applications involve considerable judicial discretion. By way of conclusion, applications which are prompt, well-reasoned and procedurally compliant will have a greater chance of success in court.
This article was prepared by Rob Green with much assistance from Imogen Kelly.