TC09602 - [2025] UKFTT 00930 (TC)

In Dominic Chappell v the Pensions Regulator [2019] UKUT 0209 (TCC) (“Chappell”) at [86] and [93], the UT held that in considering an application for reinstatement following striking out for failure to comply with an Unless Order, a tribunal should apply the approach set out in Martland, save that it should “generally take no account of the strength of the applicant’s case” unless that case was “unanswerable”, and should, in assessing the seriousness of the breach of an unless order, consider previous breaches of directions/rules that led to the making of the unless order, see [95]-[99] of that judgment.

In Martland at [37],the UT set out Rule 3.9 of the Civil Procedure Rules (“CPR”), which reads:

“(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 –

(a)

for litigation to be conducted efficiently and at proportionate cost; and

(b)

to enforce compliance with rules, practice directions and orders.”

The UT then considered Denton v TH White Limited [2014] EWCA Civ 906 (“Denton”) and BPP v HMRC [2017] UKSC 55 (“BPP”). The UT said:

“[40] In Denton, the Court…took the opportunity to ‘restate’ the principles applicable to such applications as follows (at [24]):

‘A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.’

[41] In respect of the ‘third stage’ identified above, the Court said (at [32]) that the two factors identified at (a) and (b) in Rule 3.9(1) ‘are of particular importance and should be given particular weight at the third stage when all the circumstances of the case are considered.’”

The UT noted at [42] that the Supreme Court in BPP had implicitly endorsed the approach in Denton, and also confirmed at [26] that “the cases on time-limits and sanctions in the CPR do not apply directly, but the Tribunals should generally follow a similar approach”. At [43]the UT said:

“The clear message emerging from the cases – particularised in Denton and similar cases and implicitly endorsed in BPP – is that in exercising judicial discretions generally, particular importance is to be given to the need for ‘litigation to be conducted efficiently and at proportionate cost’, and ‘to enforce compliance with rules, practice directions and orders’. We see no reason why the principles embodied in this message should not apply to applications to admit late appeals just as much as to applications for relief from sanctions, though of course this does not detract from the general injunction which continues to appear in CPR rule 3.9 to ‘consider all the circumstances of the case’.”

At [44] the UT set out the following three stage approach by way of guidance to this Tribunal: