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Relief from sanctions relating to late service of a request for an oral hearing following provisional assessment: Deputy District Judge Hill considers Denton does not apply

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On 4 March 2016 Deputy District Judge Hill made it clear that failure to correctly serve a request for an oral hearing following provisional assessment will not be tolerated.

Martin v Leeds Teaching Hospitals NHS Trust involved a minor tripping claim which settled in the sum of £2,600. Costs were claimed in excess of £14,000 and were provisionally assessed in the sum of £4,159.10. The Order following provisional assessment was received by the parties on 2 December 2015 and the Claimant’s costs representatives, Kain Knight,  made a request for an oral hearing on 23 December 2015.

CPR 47.15(7) provides:

When a provisional assessment has been carried out, the court will send a copy of the bill, as provisionally assessed, to each party with a notice stating that any party who wishes to challenge any aspect of the provisional assessment must, within 21 days of the receipt of the notice, file and serve on all other parties a written request for an oral hearing. If no such request is filed and served within that period, the provisional assessment shall be binding upon the parties, save in exceptional circumstances.

Kain Knight e-filed the request with the Court in addition to sending via fax and DX. The request was sent by email and post to the Defendant's representatives however, as the Defendant did not accept service by email, service was not effected until 29 December 2015. Consequently, whilst the request was correctly filed with the Court, the Claimant had not fully complied with the provisions of CPR 47.15(7). DDJ HIll considered that allowing relief would be tampering with the finality of the provisional assessment.

In interpreting CPR 47.15, DDJ Hill considered the importance of the overriding objective and, in particular, the importance of enforcing compliance with rules, practice directions and Orders as per CPR 1.1(2)(f). He further referred to Mitchell v NGN Limited [2013] EWCA Civ 1537 for guidance as to what could amount to a "good reason” for the purposes of granting relief from sanctions:

“We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all.”

The breach in this matter was solely as a result of the failure to serve the request on the Defendant within 21 days of the date of the Order. Consequently, the Judge did not consider it to be a “good reason” in line with Mitchell.

DDJ Hill further noted that this matter was not a case where the three stage test outlined in Denton [2014] EWCA Civ 943 3 applied as CPR 45.15(7) is a self contained rule. He concluded stating that CPR r.45.15 “means what it says and says what it means” and, given that the Claimant had failed to establish any exceptional circumstances for the failure, the application for relief from sanctions was dismissed.

Whilst this matter was heard in the County Court, it should be noted that DDJ Hill was a long-standing member of the Rules Committee and remains a member of the White Book Senior Editorial Board; it could therefore be said that this decision is an indication of the current attitudes towards any relief sought where a request for an oral hearing is not properly served.