Is an oral application for relief from sanction permissible? For example, if a party has not made a written application for permission to rely on belatedly served factual evidence, how is the matter dealt with at trial otherwise than by way of oral application?
Yes. CPR 23.3(2) entitles the court to dispense with the requirement for an application notice but a party who intends to rely on this provision lives dangerously. They run the risk that the judge will refuse to hear the oral application if the other party has been taken by surprise by it or not had sufficient opportunity to consider it and the delay involved in affording that opportunity would delay the trial. The applicant is also at risk as to costs.
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