What is the Denton Test?

The Denton Test is used by Courts when deciding whether relief from sanctions should be granted in certain cases. The Court of Appeal established the Denton test in the case of Denton v TH White. [2014] EWCA Civ 906 following an appeal from the High Court.

In this case, a three-stage test for applications for relief from sanctions was established. This three-stage test considers

1. The seriousness or significance of the breach – Relief will usually be granted in circumstances where the breach is not significant. Serious and multiple defaults would then move on to be considered at stages two and three. A breach will usually be considered minor if it has not caused prejudice to other parties and has not interfered with any important Court dates (such as a CMC).

2. The reasons why the failure or default occurred – If a good reason can be provided, this may provide a basis to allow relief. Whilst there is not an exhaustive list of good reasons, this is a high bar and general disorganisation will not fulfil the criteria.  By way of example, Denton states that a good reason may involve the file handler suffering from illness, or that an unreasonable deadline had been set to allow compliance (for instance if a deadline passes before a Court Order has actually been received).  However, even in cases where the default was serious and there was no good reason for the breach, it should not mean that the application will automatically fail. The Judge should always consider stage three.

3. All the circumstances of the case – This will enable the Court to deal with the application fairly. They should take into consideration the two criteria set out in CPR 3.9 and the overriding objective.  Other factors, such as how quickly the application was filed will also be considered.

The three-stage test approach could be described as promoting a more pragmatic and consensual approach by parties to litigation. It also means that the Court can deal with breaches in a proportionate manner.

CPR 3.9

CPR 3.9 supports the rules set out in the Denton Test. It states that a Court should pay particular attention: 

“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 rules, practice directions and orders.” 

Inefficient litigation that would result in a waste of Court resources, and would not lead to any severe implications, is therefore likely to lead to any application for relief being rejected under the third test.

When Would Relief from Sanctions be Required?

A party to a case may require relief from sanctions if they do something wrong in a case, such as a breach or delay in filing an important document, or a failure to comply with directions. A common reason within costs for a party requiring relief from sanctions would be for the late filing of a costs budget.

As soon as a party has realised their error, they should apply for relief from sanctions as a matter of urgency. The Court will usually consider the Denton Test when deciding whether they should grant relief from sanctions.  Sanctions for the late filing of a budget can have serious costs consequences however, if a prompt application for relief is made, there is likely to be little disruption, if any, to the Court timetable which will lead to a successful application for relief under the first stage.  Any application for relief should be made pre-Trial as, waiting until the day of Trial to make any application is likely to result in a disruption to litigation.

How Can the ARC Costs Team Assist? 

The ARC Costs team are always happy to help with costs challenges and can advise on the prospects of and assist with the preparation of any application for relief. We also assist with the preparation of any Cost Budget and negotiation of the same, as well as providing any advocacy services at any Costs and Case Management Conference.

We can be contacted via email at info@arccosts.co.uk, or by telephone on 01204 397302. For more information on legal costs, please find out more about our speciality areas of expertise and our services on our legal costs page.

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