Relief from sanction: taking a second bite of the cherry

On 16 December 2015, the Supreme Court unanimously upheld the Court of Appeal in the case of Thevarajah (Respondent) and Riordan and others (Appellants) [2015] UKSC 78, dismissing the appeal which concerned a second relief from sanction application.

Mr Thevarajah sought specific performance of a share purchase agreement by proceedings issued in March 2013. In May 2013, he obtained a freezing order which required the Appellants to information and documents pertaining to certain assets; in default of which they would be debarred from defending the claim.

A dispute subsequently arose as to whether the Appellants had complied with the disclosure ordered.

Mr Thevarajah applied for a debarring order; the Appellants cross-applied for a determination that they had complied with the required disclosure or, alternatively, sought relief from sanction.

On 9 August 2013, Hildyard J heard the applications and granted the debarring order. There was no appeal from that decision.

Having instructed new solicitors, the Appellants issued a second relief from sanction application on 2 October 2013, the day before trial was due to start. Mr Andrew Sutcliffe QC, sitting as a Deputy High Court Judge, heard the second relief application, granted relief and re-listed the trial.

The Court of Appeal allowed Mr Thervarajah’s appeal and restored the debarring order.

In giving the only judgment of the Justices, Lord Neuberger set out the rationale for upholding the Court of Appeal’s decision in the following terms: as a matter of ordinary principle, as well as being a requirement of CPR r.3.1(7), the Appellants were required to establish a material change in circumstances prior to the making of a second application. Late compliance is not, of itself, a material change in circumstances.

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