Case management - Non-compliance with orders, sanctions, and...

Learning Outcomes

This article outlines non-compliance with court orders, sanctions, and relief from sanctions in civil litigation, including:

• The practical consequences of non-compliance with court orders and procedural rules, and how these can jeopardise claims, defences, and trial dates
• The full range of sanctions available to the court under the CPR, from costs orders to striking out and debarment, and when each is likely to be used
• The procedure and core principles for seeking relief from sanctions, with emphasis on CPR 3.9 and how it operates in practice
• Automatic sanctions and unless orders, how and when they bite, and why they are especially high-risk for litigants and practitioners
• Variation and extension of directions by agreement or with the court’s permission, and the limits on parties’ ability to amend timetables informally
• The court’s post-Jackson “compliance culture”, the overriding objective, and the policy reasons for a stricter approach to default
• The distinction between minor, technical breaches and serious or significant breaches, and why this classification is central under Denton
• Costs and other case management consequences (including costs budgeting sanctions) used to penalise delay, non-cooperation, and pre-action defaults
• The components of a prompt, well-evidenced application for relief that engages fully with the Denton criteria and anticipates likely objections
• Practical SQE1-style scenarios, common case management pitfalls, and how to apply the Denton test methodically in multiple-choice questions

SQE1 Syllabus

For SQE1, you are required to understand the court’s powers to manage cases, the consequences of non-compliance with procedural rules or court orders, and the process for seeking relief from sanctions, with a focus on the following syllabus points:

• The court’s general case management powers under the Civil Procedure Rules (CPR)
• Types of non-compliance and their impact on proceedings
• The range of sanctions available to the court, including costs, unless orders, and striking out
• The principles and procedure for applying for relief from sanctions, including the Denton test
• The importance of promptness and evidence when seeking relief
• Key rules most often engaged in this topic, including CPR 1.1–1.4 (overriding objective and duty to cooperate), CPR 3.1–3.4 (case management powers and striking out), CPR 3.3 (orders of the court’s own initiative), CPR 3.8–3.9 (sanctions and relief), and CPR 3.13–3.15 (costs management and budgets)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is an “unless order” and when might the court use it?
2. Name three possible sanctions the court may impose for non-compliance with a court order.
3. What are the three stages of the Denton test for relief from sanctions?
4. True or false? The court will always grant relief from sanctions if the breach was not intentional.

Introduction

Case management is central to civil litigation in England and Wales. The court actively manages cases to ensure they are dealt with justly and at proportionate cost. Compliance with court orders and procedural rules is essential for the efficient progress of litigation. Failure to comply can result in serious consequences, including sanctions that may affect the outcome of the case. However, the court has discretion to grant relief from sanctions in appropriate circumstances.

The overriding objective (CPR 1.1) frames every case management decision. Courts seek to secure efficient and proportionate conduct of litigation, to keep trial dates, and to enforce compliance. Parties have a positive duty to help the court further the overriding objective (CPR 1.3), which includes cooperating over timetables and sensible extensions where appropriate. In practice, the court expects parties to manage deadlines sensibly (including agreeing short extensions where permitted) but will act robustly when defaults jeopardise efficiency or fairness.

Non-compliance with Court Orders

Non-compliance occurs when a party fails to meet a deadline, ignores a procedural requirement, or otherwise breaches a court order. This can disrupt proceedings, cause delay, and prejudice other parties.

Key Term: non-compliance
Failure by a party to comply with a court order, procedural rule, or direction.

The court expects parties to comply with all orders and directions. If a party cannot comply, they should seek an extension by agreement (up to 28 days if it does not affect a hearing date) or apply to the court for more time.

In the multi-track, dates fixed for case management conferences and the trial are treated as firm; applications to vary directions that would jeopardise those dates will face close scrutiny. Where time has not yet expired, a prompt application to extend time is considered under the court’s general powers (CPR 3.1(2)(a)); if the deadline has expired or a sanction has already taken effect, relief from sanctions under CPR 3.9 is required.

Key Term: own-initiative order
An order the court makes without an application (CPR 3.3). A party affected may apply to set aside, vary, or stay the order within the time stated in it (typically 7 days).

Consequences of Non-compliance

When non-compliance occurs, the court may:

• Impose a sanction automatically (if specified in the order or rule)
• Make an “unless order” giving a final opportunity to comply
• Apply a sanction after considering an application from the other party

Key Term: unless order
A conditional court order stating that unless a party complies with a specified requirement by a set deadline, a stated sanction will apply automatically.

Sanctions are designed to enforce compliance, deter future breaches, and protect the integrity of the court process. The court may act on an application or on its own initiative, especially where defaults threaten the timetable or the trial date.

Where the order or rule itself provides for an automatic sanction, the sanction bites at the deadline without further order. Costs budgeting is a notable example: failure to file a budget by the deadline generally results in the party being treated as having filed a budget comprising court fees only unless relief is granted.

Key Term: stay
A pause in the proceedings (often pending compliance); the case cannot progress until the stay is lifted.

Types of Sanctions

The court has a wide range of sanctions available under the CPR. The choice of sanction will depend on the seriousness of the breach and its impact on the proceedings.

Key Term: sanction
A penalty imposed by the court for failure to comply with a rule, order, or direction.

Common sanctions include:

• Costs orders (requiring the defaulting party to pay the other side’s legal costs)
• Interest penalties (adjusting interest on damages; also enhanced interest under pre-action conduct rules for failures before issue)
• Unless orders (see above)
• Striking out all or part of a statement of case (removing a claim or defence)
• Debarring a party from relying on evidence or calling witnesses
• Staying proceedings (pausing the case until compliance)
• Dismissing a claim or defence
• Limiting recoverable costs to court fees only for failures in costs budgeting

Key Term: striking out
The removal of all or part of a party’s statement of case by court order, often ending that party’s claim or defence.

Key Term: debarment
A sanction preventing a party from taking a step or relying on particular material (for example, a party may be debarred from calling an expert or relying on a witness statement served late).

Key Term: wasted costs order
An order directing a legal representative personally to pay costs caused by their improper, unreasonable, or negligent conduct.

Key Term: civil restraint order
An order restraining a party from issuing claims or making applications without permission, where they persistently issue meritless claims or applications.

Sanctions can also arise pre-action. A failure to comply with pre-action protocols or the Practice Direction on Pre-Action Conduct and Protocols can lead to costs sanctions, including indemnity costs, reduced interest for a defaulting claimant, or enhanced interest (up to 10% above base rate) against a defaulting defendant.

Costs management has its own specific sanction: where a party fails to file a costs budget on time, their recoverable costs are usually limited to court fees unless the court grants relief from that sanction. This automatic consequence under the rules means prompt applications, supported by detailed evidence, are essential.

Principles for Imposing Sanctions

When deciding whether to impose a sanction, the court will consider:

• The seriousness and significance of the breach
• The reasons for the default
• The need for litigation to be conducted efficiently and at proportionate cost
• The need to enforce compliance with rules, directions, and orders
• All the circumstances of the case

Sanctions must be proportionate to the breach and fair to both parties. The court is particularly reluctant to vacate trial dates and will prioritise orders that preserve the existing timetable. Repeated failures, lack of engagement, and failures that imperil hearing dates are treated more seriously than isolated, promptly-remedied slips that have no real effect on the other party or the court.

Key Term: relief from sanctions
A court order removing or varying a sanction imposed for non-compliance, allowing the defaulting party to proceed.

Worked Example 1.1

A claimant fails to serve their witness statements by the deadline set in a directions order. The court issues an unless order stating that unless the statements are served within 7 days, the claimant will be barred from relying on any witness evidence at trial. The claimant still does not comply.

Answer:
The sanction in the unless order takes effect automatically. The claimant cannot rely on any witness evidence at trial, which may severely weaken their case.

Relief from Sanctions

A party subject to a sanction may apply to the court for relief under CPR 3.9. Relief from sanctions is not automatic and is granted only if the court is satisfied that it is just to do so.

The application should be made promptly and supported by evidence explaining the reasons for the default, steps taken to remedy it, and proposals to mitigate prejudice. In practice, a well-drafted application will:

• Acknowledge the breach frankly
• Explain the cause with evidence (for example, witness statement exhibiting relevant communications, system logs, or medical evidence)
• Demonstrate prompt remedial action (for example, immediate service of the missing document)
• Offer practical measures to preserve the timetable (for example, consenting to reasonable extensions for the opponent)
• Be accompanied by a draft order setting out revised dates that do not jeopardise any hearing

If a sanction has taken effect automatically, relief must be sought. If a deadline is still running or has not expired, an application to extend time may be sufficient under CPR 3.1(2)(a) or by agreement between the parties (up to 28 days where no hearing is affected). Where the court made an order of its own initiative, a party affected may seek to set it aside or vary it within the time specified in the order.

Key Term: own-initiative order
See definition above. A party affected should act quickly (typically within 7 days) to seek variation or setting aside if necessary.

The Denton Test

The leading authority on relief from sanctions is Denton v TH White Ltd [2014] EWCA Civ 906. The court applies a three-stage test:

1. Assess the seriousness and significance of the breach.
2. Consider the reasons for the default.
3. Evaluate all the circumstances of the case, including the need for efficient litigation and compliance with rules.

If the breach is neither serious nor significant, relief is likely to be granted. If it is serious or significant, the court will look closely at the reasons and the overall context. Good reasons might include events wholly outside the party’s control (for example, sudden serious illness or a last-minute external systems failure). Pressure of work, oversight, or inefficiencies within a party’s or solicitor’s office are generally not good reasons. At stage three, promptness in making the application, any prejudice caused, and the history of compliance will be important.

Worked Example 1.2

A defendant’s solicitor misses the deadline to file a costs budget by one day due to an administrative error. The other party applies for a sanction limiting recoverable costs to court fees only. The defendant applies promptly for relief from sanctions, explaining the error.

Answer:
The court will consider whether the breach is serious or significant. A one-day delay with no impact on the timetable is likely to be regarded as neither serious nor significant, so relief from sanctions will probably be granted.

Worked Example 1.3

A claimant serves witness statements 10 days late. The trial is eight weeks away, and the late service does not affect the pre-trial review or the trial date. The claimant applies for relief the next day, offering to agree the defendant’s reasonable extension for responsive evidence and to pay the defendant’s costs of the application.

Answer:
The breach is likely to be treated as not significant, particularly given the quick remedial steps and lack of impact on the timetable. Applying the Denton stages, the court is likely to grant relief, possibly with a costs order against the claimant reflecting the default.

Worked Example 1.4

The defendant fails to engage with pre-action correspondence or ADR proposals, giving no reasons, and forces issue of proceedings. The defendant later succeeds on a minor point at an interim hearing and seeks their costs.

Answer:
Even though the defendant succeeded on the application, the court may penalise the earlier pre‑action conduct in costs. Failure to comply with pre‑action obligations and to engage with ADR without good reason can lead to adverse costs orders or interest adjustments at appropriate stages.

Exam Warning

If a party fails to apply for relief promptly after a sanction takes effect, the court may refuse relief even if the breach was not serious. Delay can be fatal to an application for relief.

A common trap is assuming that filing the missing material late “cures” the breach. It does not: where an automatic sanction has bitten, relief is still required. Similarly, do not assume that an agreed extension beyond 28 days is effective without court approval or where a hearing would be affected; seek an order if needed.

Revision Tip

Always check whether the breach has affected any hearing date or prejudiced the other party. Minor breaches with no impact are more likely to be excused.

Also identify whether the sanction arises automatically from the rules or an unless order. Where costs budgeting is in play, assume the automatic “court fees only” consequence applies unless and until relief is granted, and move quickly with a fully-evidenced application.

Additional Practical Points

Variation and extension of directions should be addressed early. For multi-track claims, CPR 29.5 limits when dates may be varied by agreement; if a proposed variation would affect a CMC, pre‑trial review, or trial date, seek an order as soon as possible and propose directions that preserve those hearings. Courts regularly emphasise that trial dates are “sacrosanct”.

The court may act under CPR 3.3 on its own initiative to strike out a statement of case, stay proceedings, or make other orders where directions are ignored. Such orders usually state the right to apply to set aside or vary within a short period; act within that period, with a realistic plan to restore compliance.

Costs can be used flexibly as a sanction. Orders can include costs on the indemnity basis, orders for payment into court, or wasted costs orders where the fault lies with legal representatives. The court will also consider conduct—before and during proceedings—when determining costs, including unreasonable refusals to mediate.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The court actively manages cases and expects strict compliance with orders and rules; parties must cooperate to further the overriding objective.
• Non-compliance can result in a range of sanctions, including costs, unless orders, debarment, and striking out. The court may also act on its own initiative.
• Unless orders give a final opportunity to comply before a sanction is imposed automatically; sanctions specified by rules (such as costs budgeting) also take effect automatically.
• Relief from sanctions is available but only at the court’s discretion and must be applied for promptly, with full and frank evidence and a practical plan to avoid prejudice.
• The Denton test guides the court’s approach: seriousness/significance of breach; reasons; and all the circumstances, including efficiency and compliance.
• Short, harmless delays are more likely to attract relief; repeated or timetable‑threatening defaults are not.
• Extensions by agreement are limited (normally up to 28 days and only where no hearing is affected); otherwise, seek a court order before deadlines expire.
• Pre‑action failures and unreasonable refusals to mediate can attract costs and interest penalties at appropriate stages.
• Costs budgeting has its own strict sanction (court fees only) unless relief is granted—act very promptly.
• Trial dates are treated as firm; variations or relief that would jeopardise a fixed trial date are unlikely to be granted.

Key Terms and Concepts

• non-compliance
• unless order
• sanction
• striking out
• relief from sanctions
• own-initiative order
• stay
• debarment
• wasted costs order
• civil restraint order