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Compliance with court rules and orders post-Denton: where are we now?


In its high-profile Mitchell decision last November, the Court of Appeal introduced tough new guidance on the court's approach to granting relief from sanctions for breach of a court rule or order under the new CPR 3.9 brought in by the Jackson reforms.

The decision led to a flood of satellite litigation in which parties sought to take their opponents to task for procedural failings and, in many cases, harsh sanctions were imposed for relatively minor breaches.

In an effort to address these difficulties, the Court of Appeal "clarified" the Mitchell guidance in its Denton decision in July this year, replacing it with a new, more flexible three-stage test and warning of heavy costs sanctions for those who try to take unreasonable tactical advantage of an opponent's breach.

Since Denton, the number of reported decisions dealing with contested applications for relief from sanctions has reduced dramatically. Although some of that drop may be explained by the long summer court vacation, it does seem that the messages delivered in Denton are having the desired effect, at least in making parties think twice before adopting an uncooperative stance.

This Herbert Smith Freehills briefing looks at some of the trends emerging from the decisions seen to date.


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