Civil Procedure Rule 3.9

Michael and another v Middleton and another [2013] All ER (D) 124 (Oct); NLJ 18 October

The new CPR 3.9 in force from 1 April requires the court to consider all the circumstances of the case so as to enable it to deal justly with the application, including the need (a) for litigation to be conducted efficiently and at proportionate cost and (b) to enforce compliance with the rules, practice directions and orders of the court. The new rule applied in respect of any application made on or after 1 April 2013, which was the date on which the amended rule came into force which applied in its opening words “on any application for relief from any sanction imposed”. In a case of non-compliance with an unless order, a party would be required to show a material change of circumstances in order to obtain relief from sanctions. Although the checklist of relevant considerations in the old r3.9 had been removed, they, nonetheless, represented matters which continued to be relevant as considerations for the court in making the overall assessment required by the terms of the new rule. It was not necessary for the court to deal seriatim with all of those matters and, indeed, the trend of authority prior to the change in the rules had moved away from the requirement to deal one by one with each of those separate items, but it did not mean that the matters previously referred to were not potentially relevant. It was settled law that the court should be less ready to grant relief under the new rule and that in order to do so, the court should be fully satisfied that relief from sanctions was appropriate and just in the particular case and that the court would be slow to draw such a conclusion. In a case of non-compliance with an unless order, a party would be required to show a material change of circumstances in order to obtain relief from sanctions.