In Azure East Midlands v Manchester Airport Group Property Developments Ltd  EWHC 1644 (TCC), a pre-Denton decision, it was held that a delay of two days in filing costs budgets in the context of a time frame of seven days was a “trivial” breach.
In Wain v Gloucestershire County Council  EWHC 1274 (TCC), again pre-Denton, the Court held that serving a costs budget served a day late was a “trivial” breach and an application for relief from sanctions was allowed.
In Utilise TDS Limited v Davies  EWCA Civ 906, another appeal heard at the same time as Denton and reported with it, the claimant failed to comply with an Unless Order by filing a costs budget 45 minutes late. The Court of Appeal held this delay to be “trivial”.
Most recently, in the judgment in Lakhani v Mahmud  EWHC 1713 (Ch), the defendant was one day late in filing its budget. The judge at first instance refused relief from sanctions on the basis the breach was “not a trivial breach. It is a serious breach.” This was a case specific decision and the full judgment needs to be considered to understand the reasons as to the conclusions as to the seriousness of the breach. However, on appeal the decision was upheld even if some doubt was cast on whether the original judge had correctly followed the sequence of tests as set out by Denton.
The problem with these decisions is that if the issue of whether a delay of one or two days is, or is not, a serious/trivial breach is a matter which is fact sensitive, it inevitably leads to parties who are in breach feeling justified in making applications for relief and the other side feeling equally justified opposing those applications. Satellite litigation prevails.