Freeborn & Anor v Marcal (t/a Dan Marcal Architects) [2017] EWHC 3046 (TCC)

An account which details the claimant declaring a late budget to the opposition, in which relief from sanctions was applied for by the defendant.

In the case of Freeborn & Anor v Marcal (t/a Dan Marcal Architects) [2017] EWHC 3046 (TCC), the Court sent a letter to the parties which gave the date of the CCMC and stated that costs budgets should be served 7 days before the same. The Defendant duly served their budget in accordance with the aforementioned letter.

The Claimant stated that the Defendant’s budget was late, because CPR 3.13 (1)(b) required service of the costs budget no later than 21 days before the CCMC. The Defendant refuted the Claimant’s contention that the budget was late and argued that the deadline specified in the Court’s letter had been complied with and relief from sanctions was therefore not required. In order to protect their position, however, the Defendant did apply for relief from sanctions.

Mr Justice Coulson was tasked with considering whether or not the Defendant was required to make an Application for relief from sanctions and, if so, whether the same should be allowed.  Within his Judgment, Coulson J stated that in his view no Application from the Defendant was required. In justifying his stance, he summarised that “Rule 3.13(1) is clear, that the 21 day period applies, “unless the court otherwise orders”. I consider that the letter from the court office of 20 September 2017 amounted to the court ‘ordering otherwise’.

Further, Coulson J did not consider it necessary for the Defendant’s Solicitor to have investigated whether or not the Court’s letter contained an error (in referring to the old rule of serving a costs budget no later than 7 days before the CCMC) and stated that “A busy litigation solicitor is entitled simply to rely on the date specified in writing by the Court office.”


Despite finding that no Application for relief was required, Coulson J took the parties through the three stage Denton test. He found that the breach was neither significant nor serious and described the reason for the delay as being “the best possible reason.” As to whether it would be just and reasonable to grant relief, it was found that there was no deliberate breach and that it would be indeed be just and reasonable to grant relief and that he would have done so if such relief was required.