Forgot to make that application? Who cares?
In the matter of Cutler v Barnet London Borough Council (2014)  EWHC 4445 (31 October 2014), the judge debarred a defendant from defending possession proceedings after she failed to comply with an unless order, and refused to hear her oral application for relief from sanction on the basis that it should have been made in writing and he had no discretion in the matter.
Allowing an appeal, the High Court confirmed that an application for relief from sanctions does not in fact need to be made formally in writing and that an oral application for relief constituted an “effective” application. Furthermore, it was found that the judge could have considered it appropriate to act on his own initiative.
On a technical note, the judge commented that nothing in CPR 3.8 or 3.9 stipulates that applications must be in writing. He also stated that, by making the oral application for relief from sanctions, the defendant had, in effect, sought dispensation under CPR 23.3(2)(b) from the need to file an application notice, which it was felt the judge had the power to grant. Finally, given the severe consequences of refusing the defendant’s application (namely losing her home), it was commented the judge should have balanced the CPR 3.9 factors and considered proportionality and the overriding objective.
Whilst this decision has the potential to inspire ambush litigation, it does remind us of the court’s wide case management discretion in respect of informal applications.