Application for Relief from Sanctions: Thomas v Smalling

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What is an Application for Relief from Sanctions?

Where a party has failed to comply with a Court Order or the Civil Procedure Rules, for example, in failing to file a Defence or failing to comply with the timelines set out in the Case Management Order, the opposing party can then apply for a default judgment in their favour.

The party who has failed to comply will then need to file a relief from sanctions application under CPR 3.9 in order to allow the case to remain in the Court and reverse the judgment in default made.

The most recent case law of Thomas v Smalling [2020] looks at the actions required to be taken in order to secure a successful application for relief from sanctions.


Thomas v Smalling [2020] EWHC 3186 (Ch)


The Defendant, in this case, failed to serve a witness statement as per the Case Management directions given in the case, meaning they had defaulted on the matter. Naturally, the Claimant was granted a default judgment, and the Defendant was left with the task of making an application for relief from sanctions in order for its case to progress still.

At the first hearing for the relief from sanctions application, HHJ Luba QU (Circuit Judge), refused to grant relief to the Defendant and also refused permission to appeal.

Given that the Defendant had been in default for their failure to provide a witness statement, it was no surprise that the Judges in question were not impressed that the Defendant had still not prepared a witness statement on the morning of the Trial. This meant that, even if relief from sanctions were to be granted, the Trial would need to be adjourned due to the Defendant’s failure to prepare a witness statement. The matter was heard by Mr Justice Trower.

The facts of the case were that a Case Management Order was set by the Court giving a deadline for the service of both the list of documents and witness statements. A further sanction was attached to this order stating that the parties would not be permitted to give oral evidence from any witness unless a written witness statement was first served to the Court in accordance with the Order. Furthermore, at the Pre-Trial Review, counsel for the Defendant accepted that the Defendant was in breach of all three of these orders.

At the Pre-Trial Review, held on 09 October 2019, the matter was listed for Trial to be heard on 16 December 2019, along with further directions in serving trial bundles and skeleton arguments. The Judge at the Pre-Trial Review hearing had agreed that Trial was urgent, as had DDJ Grout making the initial Case Management Directions.

Five days after the Pre-Trial Review hearing, the Defendant’s solicitors filed an application for Relief from Sanctions and with this application, sought permission to amend the Defence. With the application, a witness statement was served, which dealt with the issues between the parties but failed to deal with the procedural issues which lead to a failure to comply with the directions.

Mr Justice Trower criticised the Defendant’s failure to seek an urgent hearing for their application given their failure to comply and the urgency of the forthcoming Trial. Mr Justice Trower stated that it was essential to request an urgent hearing of the application for relief from sanctions in order to ensure the Trial was not jeopardised.

At the opening of Trial on 16 December 2019, the Defendant made their application for relief from sanctions. It was dismissed, and the Judge applied the Court of Appeal case of Denton v. TH White Ltd [2014] EWCA 906. The Judge considered if departing from the Court orders was firstly serious and significant, the reasons for those departures and finally the whether it was appropriate to grant relief from sanctions given the circumstances of the case.

  • The first part of the Denton test was satisfied, and the breaches were found to be serious and significant.
  • The Judge them also held that the Defendant provided no good reason as to why these breaches took place. The Defendant disputed this, stating that the reason for the breach was that they were newly instructed solicitors and had not received instructions in a timely manner to produce the witness statements.
  • In the final stage of the Denton test, the Judge found that if he was to grant relief from sanctions, this meant that the Trial would have to be adjourned in order to allow the Defendant to produce the witness statements. Mr Justice Tower relied heavily on the fact that the Trial was deemed to be urgent on two separate occasions by the Court and that it would not be just to adjourn the Trial now due to the Defendant’s serious breaches with the Court orders.



The findings of this case make a few good lessons to consider if you fall in breach of Court directions. Firstly, it is recommended that an application for relief from sanctions are made as quickly as possible following the breach. The application needs to be made within hours or days of the breach taking place as this clearly adds weight to the application.

Furthermore, it is important to ensure the breach is corrected before any hearing takes place. In the example in the above case, the Court was not impressed that the Defendant had still not prepared the witness statements at the time of the hearing. It will not be a favourable outcome if the breach is still in place at the time of the hearing, so it is imperative that the breach is put right before the hearing takes place.


How Can ARC Costs Assist?


At ARC Costs, we are a team of specialist Costs Draftsman and Costs Lawyers. We can assist with both the recovery of your costs for the main action or for application costs. We also hold vast experience in acting for the paying party and can assist in disputing any unreasonable costs which you may face.

We are experts in preparing legal costs documents such as a Bill of Costs, a Statement of Costs (for Trial or for an application) and Points of Dispute. We hold experience in costs negotiations and can advise you on the likelihood of recovery based on our experience with both the Court and opponents.

As Costs Lawyers, we can represent you during Detailed Assessment proceedings.

If you have a costs query you would like to discuss, contact us on 01204 397302 or You may also complete our contact form here, and a costs specialist will contact you to discuss your query further.

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