In two recent cases concerning applications for relief from sanctions pursuant to CPR3.9 the Court of Appeal has applied the 3-stage tests set out in Denton v TH White Ltd [2014] 1 WLR 3926 and emphasised the need to act promptly when applying for relief.
In Gentry v Miller and another [2016] EWCA Civ 141 an insurance company’s application to set aside a default judgment and damages award against its insured was dismissed, even though there was evidence suggesting that the claim was fraudulent.
Vos J held that it is now established that the Denton tests apply to applications under CPR 13.3 (setting aside a default judgment) and that it is “equally clear” that the same tests also apply to an application under CPR 39.3 to set aside a judgment or order made at a hearing not attended by the party affected. The crucial factor in this case was the insurer’s delay in applying for relief, which had to be considered both as one of the requirements under CPR 13.3 and CPR 39.3, and at the third stage of the Denton tests.
The applicant’s failure to act promptly was also the determining factor in Oak Cash & Carry Ltd v British Gas Trading Ltd [2016] EWCA Civ 153 where the Court refused to grant relief from the sanction of striking out following the applicant’s non-compliance with an unless order. In this case Jackson LJ also clarified that when assessing the seriousness and significance of a breach of an unless order (Denton first stage) the Court must also look at the underlying breach which gave rise to the unless order.
