Steven Loble

Welcome clarification - litigators and clients need to worry less

New procedural rules were introduced in England in April 2013.  They are known as the Jackson Reforms.  The rules provide for more hands-on case management by judges and stricter enforcement of time limits.

As with anything new, there was some trial and error and the law of unintended consequences came into effect.

A decision regarded as draconian by most litigators in the Mitchell case, left lawyers in something of a quandary.  If the opponent missed a deadline, would it be negligent not to capitalise on the default?  Alternatively, by being too intransigent, might the lawyer let his client or even his firm in for an adverse costs order for unreasonable behaviour?

After Mitchell, there were over 40 cases in relation to relief from sanctions, adding to the costs of the individual cases and using up a large amount of judicial resources.

In Denton and others v TH White Ltd and another; Decadent Vapours Ltd v Bevan and others; Utilise TDS Ltd v Davies and others [2014] EWCA Civ 906 the Court of Appeal provided guidance to courts considering relief from sanctions pursuant to CPR rule 3.9 for non-compliance with court orders.

Two of the judges ruled that,

“A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the "failure to comply with any rule, practice direction or court order" which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate "all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]".”

The question whether a breach was trivial or not, is not the question to be answered.  “Rather, it should be on whether the breach has been serious or significant.”

Interestingly, Jackson LJ whose “Review of Civil Litigation Costs: Final Report” led to the rule changes, decided that the first two factors should not be given greater weight than other considerations, but that they have to be considered in every case and that, “Ultimately what rule 3.9 requires is that the court should "deal justly with the application".”

The Court concluded with,

“But we hope, as we have said, that it will now be unnecessary to refer to earlier authorities in future and that the guidance we have given will assist in reducing the need for satellite litigation and will be conducive to a reasonably consistent judicial approach to the application of rule 3.9.”

As Hamlet said, “ 'Tis a consummation Devoutly to be wished.”

For clients, this judgment should mean that they face less risk of capricious decisions in relation to non-serious breaches of timetabling orders.  However, clients should be aware that the court is serious about time limits and clients need to ensure that their solicitors are provided with documents, instructions and funds in a timely fashion to avoid having to make costly applications for relief from sanctions.

Steven Loble