The High Court recently awarded relief from sanctions for a late cost budget, despite an application for relief not being made and the other party suggesting to the party in breach, that they should make such an application.
The automatic sanction for filing a costs budget late or not at all, is for the offending party to be unable to recover any costs on the standard basis, save for Court fees. This sanction applies unless ‘the Court orders otherwise’.
The judgment can be read from the link below. Rule CPR 3.14 and the commentary to the White Book, make clear that the Court can ‘order otherwise’ without an application for relief from sanctions being made.
I was involved in a similar case before Mr Justice Snowdon on 29th January 2020, where my client avoided the sanction by making an oral Application to the District Judge whose decision was subject to an appeal. In dismissing the appeal, Mr Justice Snowdon confirmed the District Judge’s broad case management discretion in these circumstances.
What was not expressly stated, was whether an oral application for relief from sanctions (in circumstances where there is no discretion to ‘order otherwise and so an application for relief would have to be made) is to be treated in the same way as the Court acting on its own motion.
The Court has a fairly wide discretion to dispense with an Application Notice under CPR 23.3(2)(b) and therefore allow an oral application, yet arguably should only grant relief from sanctions on its own motion in ‘rare’ circumstances (see Macron Shipping (London) Ltd v Keflas  EWCA Civ 463).