Applications from relief from sanctions are considered at every level of civil litigation. For example, I receive instructions to deal with relief from sanctions applications in the small claims track.
The difficulty I face is the lack of evidence to make the applications as efficiently as possible. It is akin to the situation when an issue arises in the moment and it is suggested that I make an oral application in the face of Court. I have none of the evidence required.
Many application statements appear to be derived from precedents, but these precedents are not always helpful.
What I see in application statements.
The statements I usually see (and these are not limited to small claims matters but also fast track) contain the following:-
- Brief explanation of the claim
- Description of the direction breach
- Submissions regarding relief from sanctions (the Denton test)
- That is it ‘prejudicial’ for the party to not get relief
These can vary in length but the general gist is that it is a brief statement which lacks the actual content.
What shouldn’t be in the application statement
I should make it clear that most of what is already contained is both required and appropriate.
What is usually frowned upon by the Court is the legal argument. Witness statements are to adduce evidence of fact, rather than legal submissions. Although most contempt for such acts are usually reserved witness statements in trials by lay witnesses. It does not, however mean that an application witness statement should include submissions.
There is, in my opinion, an exception to the above rule. When you intend for an application to be dealt with on paper without a hearing. In that circumstances you will need to adduce the evidence in support and set out the legal submissions as to why.
What must be in the application witness statement
The evidence that is needed is the ammunition for obtaining relief. It is simply not enough to argue there is prejudice even though, strictly speaking, most applications if not all will only succeed upon
I must give credit to the fact that where there has been no previous breach, a fee earner will state this in the application. The issue arises when there has been a previous breach and such evidence is not adduced.
The advocate can overcome the suggestion of repeated breaches if the reasons are given. It may be open to the advocate to distinguish a breach caused by an inadvertant procedural error (such as an entry into a case management calendar in error) from a substantially different breach (such as a parties outright failure to engage with their Solicitors). If the explanation is given then the advocate could argue that this type of breach was the first time and the previous breach was so different it cannot be suggested to be a repeat offence.
Be honest and open in detail
There have been a few statements which seem to dance around the fault or cause of the issue. One of the best application statements set out in detail what the process was to avoid breaches of Orders, how the breach occurred despite the process and what changes were made to avoid it in the future.
In that case, the Judge said the reason the breach occurred was not enough to grant relief at stage two of the Denton test, but was credited as being so detailed and explanatory as to how this wasn’t just an ‘oversight’ but simply how there was a hole in what appeared to be a good system and evidence of adaption following the breach.
It is a balance act. On the once hand, actually adduce evidence that supports what you say and two your words in the statement is evidence. Elaborate in the witness statement matters that are not self explanatory from the exhibited evidence.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.