“Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy.” Smith v Cropper(1885) 26 Ch D 700 per Bowen LJ.
The purpose of reform
“The tougher more robust approach to rule compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now.”
Lord Dyson MR, 18th Jackson Implementation Lecture at paragraph 27. 
“Courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system.”
Sir Rupert Jackson, Final Report, Chapter 39 at paragraph 6.5. 
3.9 Relief from sanctions
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(b) to enforce compliance with rules, practice directions and orders.
The dead admiral
“The merit of the rule is that it sets out a stark and simple default sanction. The expectation is that the sanction will usually apply unless (i) the breach is trivial or (ii) there is a good reason for it. It is true that the court has the power to grant relief, but the expectation is that, unless (i) or (ii) is satisfied, the two factors mentioned in the rule will usually trump other circumstances. If partial relief were to be encouraged, that would give rise to uncertainty and complexity and stimulate satellite litigation.” Mitchell v News Group  1 WLR 795 per Lord Dyson MR at .
“It must not be overlooked that the Court of Appeal in Mitchell did not say that the two factors specified in CPR 3.9 will always prevail, as a matter of weight, over any other circumstances in a case where the default is not trivial and where there is no good justification. It is true that it later stated that the expectation is that the two factors mentioned in CPR 3.9 will “usually” trump other circumstances. But it did not say that they always will. That, with respect, must be right. It must be right just because CPR 3.9 has required that all the circumstances are to be taken into account and has required that the application be dealt with justly.”
Chartwell Estate Agents Ltd v Fergies Properties SA & anor  EWCA Civ 506 per Davis LJ at .
“It is perhaps also appropriate to refer to a short part of the paper delivered by Jackson LJ at the recent conference held on 21 March 2014 by the Civil Justice Council on the impact of the Jackson reforms. In paragraph 3.9 of that paper, having referred to the decision of the Court of Appeal in Mitchell, Jackson LJ wrote: ‘Nevertheless parties should not be allowed to exploit trivial or insignificant breaches by their opponents’.”
Wain v Gloucestershire County Council  EWHC 1274 (TCC) per Judge David Grant sitting as a Deputy High Court Judge at .
A defendant served a costs budget a day late, which was considered to be trivial. Relief from sanctions was granted.
The new test
In Denton v TH White Ltd, Decadent Vapours Ltd v Bevan and Utilise TDS Ltd v Davies  EWCA Civ 906 Lord Dyson MR and Vos LJ, in a joint judgment, set out a three-stage test to be applied to any application for relief:
2) The Court should consider why the default occurred; and then
3) The Court should “evaluate all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”
Lord Dyson MR and Vos LJ explicitly seek to dissuade parties from engaging in satellite issue on the question of relief from sanctions, and warn of the costs consequences to parties who attempt to seek a windfall from non-serious and insignificant breaches:
 The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective. Representatives should bear this important obligation to the court in mind when considering whether to advise their clients to adopt an uncooperative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions. It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions.
Prince Abdulaziz v Apex Global Management Ltd  UKSC 64 (heard October, judgment on 26th November 2014)  per Lord Neuberger at :
R (ex p Hysaj) v Secretary of State for the Home Department  EWCA Civ 1633, December 2014 per Moore-Bick LJ at :
British Gas Trading Ltd v Oak Cash & Carry Ltd  EWHC 4058 (QB) Solicitors accidentally filed a directions questionnaire rather than a listing questionnaire following an unless order. The court considered this to be a serious and significant breach. The solicitor’s wife was ill, it was a big firm and he should have delegated. Having regard to the circumstances, delay had major impact. Trial date was lost and satellite litigation might be required. Per McGowan J at :
Talos Capital Ltd v JCS Investment Holding XIV Ltd  EWHC 3977 (Comm), 21 November 2014, Flaux J.
CPR 3.9 applied, as there was an implied sanction. An extension of time to acknowledge service and challenge the jurisdiction was refused where the delay appeared to be deliberate and tactical.
Late submission of costs statement
Group M UK Ltd v Cabinet Office  EWHC 3863 (TCC), November 2014
Interested party failed to comply with the practice direction, the Claimant submitted that the interested party should be penalized for late submission. Whether disproportionate to deprive interested party of costs for late submission. Per Aikenhed J at :
Coal Hunter v Yusho Regulas  EWHC (Admiralty). Mr Justice Teare allowed the claimant to rely, in part, upon a factual witness evidence a year late. A year after the deadline for exchange, shortly before trial, the Claimant sought permission to adduce a witness statement from the pilot to a vessel. The judge applied Denton:
Why did the default occur? Nobody had thought to obtain the statement. The delay was entirely on the claimant’s side.
Consider all of the circumstances of the case in order to deal with the application justly, including, in particular, (a) the need for litigation to be conducted efficiently and at proportionate cost and (b) the need to enforce compliance with rules, directions and court orders.
Bankside Hotels Ltd v Gourgey  EWHC 4440 (Ch) before Mr S Monty QC sitting as a Deputy Judge of the Chancery Division. Failure to reply fully was serious and significant, it disrupted the litigation. Unrelated failures to comply should not be considered when assessing the seriousness or significance of the breach; these are part of the overall circumstances step. This repeated comments made in Denton at . Per Monty QC at :
Al Hamadani v Al Khafaf  EWHC 38 (QB). The Claimants served witness evidence and a transcript 20 days after the deadline. The Court, applying Denton, considered the failure to comply with a deadline for service of witness statements was a serious and significant breach. Warby J granted relief at :
To be put in contact with Rupert Myers about your case, please contact the EA Law – East Anglian Chambers clerking team on 01473 214481.
1 “Parkinson’s Law” – Cyril Northcote Parkinson, naval historian, in a 1955 essay for The Economist http://www.economist.com/node/14116121
2 Trans. “In this country, it is thought well to kill an admiral from time to time, in order to encourage the others”. A line from Voltaire’s novel Candide, immortalizing the court-martial and subsequent execution in 1757 of Admiral Byng for “failure to do his utmost” to save the British garrison on Minorca.
3 Notes from a speech first given to the Norfolk & Norwich Law Society on 19th February 2015.
4 Delivered at the District Judges’ Annual Seminar, 22nd March 2013 http://www.judiciary.gov.uk/wp-content/uploads/2014/10/mr-speech-judicial-college-lecture-2013-1.pdf
7 Jean-Baptiste Alphonse Karr (1849) : “The more it changes, the more it’s the same thing”.