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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I would like to go back to a question I asked you at the

Resolved Question:

I would like to go back to a question I asked you at the beginning of last October in respect of relief from sanctions. I had made an application to set aside an order made in my absence and I had also made an application for the claim to be struck out as the Claimant had made an application for an extension of time to file an amended Particulars of Claim when I felt they should have made an application for relief from sanctions. You advised me that relief from sanctions did not apply as the D.J. had not made an unless order. Accordingly, when I attended the hearing I decided not to broach the question of relief from sanctions. As my application failed generally I filed an Appellant's Notice before I had the transcript of the judgement and did not in any way deal with the question of relief from sanctions. However, in his judgement the D.J. has stated as part of it:
"Mr. Daniels has not at any stage really addressed the point which arises under his September application about the relief from sanctions which I gave to the Claimant in my earlier order this year.
Would you now see I could proceed on this point and if so advise me what action I should take to bring it into the application for permission to appeal. This is important as it is an absolute certainty to win the case if it can now be argued.
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.

Hello and thanks for asking for me.

Are you trying to introduce relief from sanctions into your Appeal?

Customer: replied 1 year ago.
I suppose it would be correct to say that but wonder if it is really necessary given what is in the judgement and the fact that there was never an application for relief from sanctions as required by CPR 3.9. Also the application which was made was dealt with ex-parte which I believe is not possible with an application for relief from sanctions
Expert:  Ash replied 1 year ago.

If you didnt raise it at the Court below then sadly you cant raise it at appeal.

Only where issues are raised at a lower Court can they be considered by an Appellant Court.

Can I clarify anything for you about this today please?
Alex

Customer: replied 1 year ago.
What happened was I had made an application for the claim to be struck out on the question of relief from sanctions but in view of the advice you gave me I decided not argue it. The application was nevertheless made
Expert:  Ash replied 1 year ago.

Ok - if you raised the argument then you can raise it at the Appeal.

Can I clarify anything? Alex

Customer: replied 1 year ago.
Do you mean if I made the application then I can raise it at the appeal?
Expert:  Ash replied 1 year ago.

There was no issue of relief as there was no sanction in an order.

So there was no point to raise that.

But if you also did not raise relief it would not have been addressed nor can you argue it on appeal.

Does that clarify?

Customer: replied 1 year ago.
But in the judgement the DJ has said that he granted relief from sanctions so surely I can argue it on the basis that the procedure for relief was not complied with
Expert:  Ash replied 1 year ago.

You could yes, if relief was granted and the requirements of 3.9 were not complied with

Does that clarify?

Customer: replied 1 year ago.
I could argue that I did not raise it the hearing as there was no sanction in an order but if he granted relief then the procedure under CPR 3.9 was not complied with
Expert:  Ash replied 1 year ago.

Yes you can appeal on that point that it was wrong to give relief when 3.9 had not been complied.

Ash and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Okay, thanks.