Contesting the Application

[ScrumMaster]

Dear LegalBeagles,

First of all, I want to thank you for your earlier help to me on this forum, it was invaluable.
Running your case all by yourself can be hard, I am really grateful for your kind advice.

Now, to the question. I am the Claimant in a civil claim for damages.
The Defendant was ordered to disclose some data to me, he did not comply with the order.

Now his solicitor submitted an application for relief from sanctions and for extension of time to comply with the order.
The solicitor wants the applicaiton to be dealt with "on paper" to make it fast and no hearing.

However, I want to contest this application. What do I need to do to get it in front of the judge instead?
I have reasons to oppose it. How do I make sure that their application get to the hearing with my evidence in response?
Do I need to submit the contest and evidence in response also to the court? Will they be able to connect their application and my response to it, or do I need to call them and ask for it?

Many thanks in advance.

[R0b]

Hi,

Normally when you oppose an application you do it in the form of a witness statement. It would be unusual for an application for relief to be heard on the papers because there are very specific requirements the court must consider when deciding whether to grant relief. There is also the issue that hearing the application on the papers means that your deprived from challenging the evidence put forward by the witness who should really be in attendance and available for questions. I'm pretty sure there was a High Court case a few years back that said it is not appropriate for an application for relief from sanctions to be heard without notice or on the papers but I could be wrong and that may be applicable to strike out/summary judgments, although I would argue the same principles apply here.

In an application for relief from sanctions, the court will apply what is known as the Denton principles derived from the Denton v TH White case. It is a 3 stage test: (1) What is the seriousness and significance of the breach, (2) Why did the breach occur i.e. was there a good reason for the breach and (3) evaluate all of the circumstances in the case as to whether relief should be granted or not.

I'm assuming the solicitor has put in a witness statement, is this on behalf of the solicitor or the defendant and does any of the statement or evidence mention or otherwise cover the 3 stage test at all? Also, has the defendant only just instructed the solicitor to make the application or were they already represented?

[ScrumMaster]

Thanks, Rob.

Yes, I also think it is strange that they want the application for relief from sanction to be dealt with on paper. I suspect they try to deprive me of the ability to contest it. I already told them before I was going to apply for sanctions.

I am aware that I have to produce a Witness Statement to contest it, but should I send it somewhere else than only to the defendant? I need to make sure that the Court deals with the application in the hearing.

Yes, the Defendant's solicitor, who has been assisting him since even before the proceedings, produced two Witness statments, one from the Defendant himself and one from herself, where she deals with Dentons 3-stage test. There are false statements made there under oath.

[ScrumMaster]

I emailed the Court and said that I wanted to oppose the application and that I wanted a hearing.