Non-compliance with orders

Question 1

what should a party do if they become aware they won’t be able to comply with an order?

Answer 1

seek to agree an extension/apply to the court as soon as possible

Question 2

what can a party do where the other side has not complied with an order?

explain this.

Answer 2

apply for an order to enforce compliance with a CMD and/or for a sanction to be imposed

Applicant must apply without delay + inform the other party of their intention

The court can take delay into account

Question 3

what effect does non-compliance have on the trial?

Answer 3

trial will not be postponed by failure to comply with a CMD unless the circumstances are exceptional (last resort)

Question 4

give examples of sanctions the court may impose

Answer 4

o Unless orders
o Deprive a party of a right to contest an issue/rely on evidence
o Case struck out
o Costs i.e. indemnity basis or reduce/increase interest payable

Question 5

what should a party do if sanctions are imposed?

Answer 5

file an N244 + evidence for RFS because any sanctions have effect unless RFS applied for

NB: costs sanctions are appealed, not RFS

NB: if a sanction has not been imposed (expressly by the court or implied under CPR), an RFS application is not required

Question 6

what will the court consider when determining the application?

Answer 6

The court will consider (CPR 3.9):
o All the circumstances of the case to deal with case justly
o Need for litigation to be efficient + at a proportionate cost
o Enforce compliance with rules, PD and orders

+ the Denton principles

Question 7

what are the Denton principles?

Answer 7

3 stage approach to RFS application:
1. Assess seriousness + significance of breach
2. Consider reason for breach
3. Evaluate all circumstances of the case, considering CPR 3.9

In short = more serious, relief less likely unless good reason