Dismissing the appeal against both orders
On the 18 June decision
(1) The Master was entitled to be guided by CPR 3.14 since this represented the view of the CPR Committee as to what was a proportionate sanction for failure to file a costs budget in time.
(2) The Master was correct to construe CPR 3.14 as referring to a failure to file a budget within the time prescribed in CPR 3.13, that is to say seven days. It was important to comply with both the obligations in PD 51D.
(3) The decision was not disproportionate and contrary to the overriding objective. The hearing of 18 June proved to be abortive and C was not in a position to invoke the saving provision in CPR 3.14 (“unless the court otherwise orders”) since his solicitors had not produced evidence which might otherwise persuade the court to adopt that course.
On the 25 July decision
(1) The changed wording of CPR 3.9 signalled a change of emphasis. The need for litigation to be conducted efficiently and proportionately, and for compliance with rules, practice directions and court orders was now of paramount importance. While regard should be had to all the circumstances of the case, these should be given less weight than these two considerations.
The court gave guidance as to the adopting of the new approach in practice:
(a) where non compliance can be regarded as trivial, the court will usually grant relief provided the application is made promptly;
(b) If the non-compliance cannot be characterised as trivial, then the burden will be on the defaulting party to persuade the court to grant relief. Mere overlooking a deadline is unlikely to be a good reason. Good reasons are likely to arise from circumstances outside the control of the party in default.
(c) the new, more robust approach will mean that relief from sanctions will be granted more sparingly than previously.
(2) While there was some force in criticisms of the Master’s reasoning, they did not go to the heart of it. Her main finding was that the C’s solicitors had been in breach of PD 51D, and that, in the light of the new approach mandated by the Jackson reforms, the case for granting relief from sanctions was not established.
(3) the Master was right to recognise that the emphasis under CPR 3.9 had changed. Although her response could have been different in terms of the sanction imposed, a grant of partial relief from CPR 3.14 will not often be appropriate.