This is, I am afraid, a rather boring and very legal piece about the intricacies of the Civil Procedure Rules (CPR). I try not to write things like this but it is so important that I can’t really avoid doing so. At least it isn’t that long.
I won’t need to remind you that in November 2013 the Court of Appeal gave its decision in Mitchell v NGN and brought down Hell and Damnation on civil litigation in general, and lawyers in particular, by deciding that following the changes in the CPR , especially r3.9, relief from sanctions for failing to comply with court rules and orders was going to be a lot harder to get, and impossible in many cases. They set out a two-stage test:
- was the default trivial?
- was there a good reason for the default?
So far so good. But they went on to say, or at any rate imply, that if the answers were both “no” then there should be no relief. And often the result was that a whole claim was struck out because some document was served a day or two late without a “good reason”. Because the CA had said merely overlooking a deadline was unlikely to be a good reason. And rules are rules.
The result of course has been that as soon as you see that the other side has breached some time-scale by the smallest amount you are duty bound to make an application to strike the claim out, and the courts became very clogged up by it all, and in due course, seriously concerned at what a mess they had made.
This wasn’t helped by the case of MA Lloyd v PPP International which decided that in most cases the parties couldn’t extend the time to do things such as exchange lists of documents because it was prohibited by the rules as they then stood. I said at the time that something would have to be done because it was unworkable (here) and after a time the CPR were changed to allow the parties to extend time by up to 28 days provided court hearings were not put at risk (r3.8(4)) . But that left a lot of other problems. And why should you agree to extend time if your client could get such a bonus by being awkward and saying “no”?
Relief at last
Well the Court of Appeal has at last acted and on 4th July 2014 decided Denton v White and eased things up considerably, and smacked heads and told everybody not to be so silly in future. I won’t go into things in detail because virtually everybody has done so already, and for the full story either read the judgement (another link here) or look at the articles listed below. But the outline is that the court has looked at the test for relief set out in r3.9 and decided the right way to go about things is now to ask:
- Is the breach serious or significant? In other words, will it have a real effect on the future conduct of the case, or seriously inconvenienced other court users? If not then relief should normally be given, and matters come to an end. If it is however:
- Why did the default occur? Was there a good reason, or excuse? If so then relief should be given. But if not:
- Look at all the circumstances of the case, consider what is necessary to deal justly with the application, but bear in mind the two particular factors a) and b) below, and make a fair and just decision. Just because the default was serious and there was no excuse does not mean that the relief has to be refused. It will just make things harder for the applicant.
The two factors are set out in CPR r3.9 which provides:
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.
And having set down the rules, the court decided the cases on their merits, and then laid into parties who try to take advantage of small slips by their opponents:
41 We think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage….
42 It should be very much the exceptional case where a contested application for relief from sanctions is necessary. This is for two reasons: first because compliance should become the norm, rather than the exception as it was in the past, and secondly, because the parties should work together to make sure that, in all but the most serious cases, satellite litigation is avoided even where a breach has occurred.
43 The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective. Representatives should bear this important obligation to the court in mind when considering whether to advise their clients to adopt an uncooperative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions. It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can, in an appropriate case, also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case. If the offending party ultimately wins, the court may make a substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If the offending party ultimately loses, then its conduct may be a good reason to order it to pay indemnity costs. Such an order would free the winning party from the operation of CPR rule 3.18 in relation to its costs budget. [my emphasis]
Even judges were not immune from criticism, and it was pointed out that if rules are to be complied with then timetables and other directions have got to be realistic, and “unless” orders should be reserved for situations in which they are truly required.
So what next?
Given the unholy mess that has emerged over the 8 months or so since Mitchell it is very much hoped that things will now settle down so that those of us at the coal face can get on with litigating disputes for our clients and not spending all our time making sure that we don’t overlook the slightest direction or requirement, or pouncing on our opponents if they do so. The CA was pretty robust, and given the emphasis on penalising parties who are unreasonable it is going to be a lot more dangerous to oppose applications for relief in future. Only time will tell.
There have been a lot of comments on the fact that although the main judgement was given by by Lord Dyson MR and Vos LJ, there was a separate judgement by Jackson LJ that disagreed to some extent with the majority decision. And the reforms had of course been brought in following Jackson LJ’s report. But in all fairness the disagreements were more on matters of emphasis than anything else.
And the latest thing is consideration on whether it would now be possible to appeal some of the relief applications out of time, in the light of Denton. Is an application to appeal a relief application out of time an application for relief against sanctions?
Lots of comments in all the normal legal sources, plus a lot of solicitors’ or chambers’ sites as well. As normal the best are at Nearly Legal and Gordon Exall’s site which has an enormous number of links, comments and lists of all sorts.