Solicitor granted reprieve from Court after failing to attend directions hearing

The intention of the 2013 Civil Procedure Reforms was to ensure that court litigation was conducted proportionately and efficiently, which meant that Courts were expected to censure the lax culture of non-compliance with Court orders which, it was believed, had caused unnecessary expense, delay and inconvenience within the Court system. This led to amendments to Rule 3.9 of the Civil Procedure Rules (which deal with when the Court can grant relief from sanctions for failing to comply with a Court order) and two important judgements, Mitchell v News Group Corp[2013] EWCA Civ 153 and Denton v TH White Ltd [2014] EWCA Civ 906. Denton stated that a 3 stage approach was required: a. was the breach serious? b. was there a good reason for the breach? c. should relief from sanctions be granted having regard to all the circumstances of the case?

In Home Group v Matrejek [2015] EWHC 441 (QB), the High Court has applied Rule 3.9 and the guidance on applications for relief from sanctions in Denton to a possession claim based on nuisance and anti-social behaviour. Miles and Partners LLP acted for the Appellant.

Ms M has been an assured tenant with Home Group of a property in Braintree, Essex since November 2002. Between 2011 and 2013, Ms M was accused of acting in a anti-social manner towards her neighbours, a notice seeking Possession was served on 23/8/2013 and a claim was issued in Chelmsford County Court in October 2013.

On 12/2/2014, HHJ Lochrane listed the matter for a directions hearing on 28/4/2014, the purpose of which was to co-ordinate the possession claim with a Children Act application involving Ms M’s children. In the week before the hearing on 28/4/2014, both parties’ legal representatives sought an adjournment and the landlord’s solicitor believed that no further directions were required. No response was received from the Court and Ms M’s representatives attended Court on her behalf.

The Claimant’s legal representatives elected not to attend the hearing and informed neither the Court nor Ms M’s solicitors that they would not attend. The result was that HHJ Lochrane found that he was unable to manage both claims and so he dismissed the possession claim and ordered Home Group to pay Ms M’s costs.

Home Group applied for relief from sanctions and on 9/6/2014, HHJ Lochrane granted the application and restored the possession claim. The leading authority at the time was Mitchell v News Group Newspapers. The judge found that, although Home Group’s solicitor had acted deliberately, their decision not to attend was perhaps explicable given that the purpose of the hearing was not made clear and there was just about a reasonable excuse. Justice also dictated that the claim be reinstated.

By the time Ms M’s appeal was heard by the High Court on 28/10/14, the leading authority was Denton and judgement was given on 23/2/15. Sweeney J held that the decision not to attend the directions hearing was serious but at the second stage, he agreed with the Circuit Judge that Home Group had “just about a reasonable excuse” for not attending. While the other circumstances of the case would not, in the Court’s judgement, carry particular weight on their own, the Court’s finding that there was a reasonable excuse allowed the Court to weigh those circumstances (e.g. the effect on neighbours) in the balance. The Appeal was therefore dismissed.

Shortly after this judgement was handed down, the Law Society Gazette published an article beginning “The High Court has shown a further sign of lenience towards non-compliance.” Lenience was of course meant to be curbed by both the Mitchell and Denton judgements and this appeal raises the question whether a reasonable excuse and deliberate conduct can amount to a good reason within the scope of the Denton guidance.

An appeal has been lodged against the High Court’s decision, which will give the Court of Appeal the opportunity to look again at the law in this area.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.