Report comment

"I find DAC Beachcroft's stance utterly revolting..."

It wasn't their stance but the Court's. The breach occurred; an application must then follow as sanctions bite automatically absent the grant of relief. Beyond submissions, the respondant has no role in that whatsoever - it is a matter between the Court and the party seeking relief.

No form of gentlemanly agreement to not mention the issue could have protected the defaulting party from the automatic procedural outcome of the breach. If no one had said anything and just tried to crack on, the defaulting party would have been at a significant risk that on the Court itself spotting the issue they would be limited to being treated as having filed a budget limited to Court fees only per CPR 3.14. Then they really would have been in difficulty as, with no application having been, made they would not have been able to show that they had acted with the requisite alacrity in seeking relief.

There was a breach. The defaulting party correctly made an immediate application to the Court for relief. The respondant does not have it within their gift to grant that relief - that is solely a matter for the Court. The Court refused relief. The defaulting party appealed and the higher Court overturned the earlier decision. Yes, it appears the respondant stuck their oar in when invited for submissions but in many ways the most surprising element of the Judgment is that the applicant got their costs.

The breach happened. Everything that followed happened because of the breach / first instance apparently erroneous decision, not because of the respondant's conduct (or the conduct of their solicitors). Once the breach occurred there was nothing they could do to remedy the issue for the defaulting party.

I would rather have expected, 'ok, have your relief but ultimately we're here because you breached the CPR so [at best] no order as to costs and you're lucky I'm not making you pick up theirs as well'.