Pre-Jackson and Pre-Mitchell, relief from sanction rarely turned your claim into a fatality. The more senior practitioners will recall Biguzzi v Rank Leisure PLC (1999) and the flowery language of “abdication of justice”.
As the Jackson Report made clear, “Courts at all levels have become too tolerant of delays and non-compliance with Order. In doing so they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed”.
LJ Dyson at the 18th Implementation Lecture raised an important point that “…questions concerning relief from sanctions are not simply considered by reference to the immediate legislation but to the wider public interest… 3.9 is intended to eliminate lax application and any culture of toleration”.
Pausing on the above paragraph briefly, the “wider public interest” deserves to be amplified (I will come onto this later) and as Master of the Rolls, Judges will listen to these lectures as being an important source of law, at least for guidance on the new regime before it settles down into a trail of authoritative case law. Further, this lecture was referred to in the Mitchell decision. It is important to note the “trip wires” referred to. Some commentators also attach importance to the ‘not exceptional’ reference regarding the Singapore approach (being the jurisdiction that Jackson is a massive supporter ).
1. The Overriding Objective. This always prevails; and
2. CPR r 3.9. i.e. the new version.
Sanctions as a matter of failure
There has been some dispute over whether there are automatic strike outs as a result of a failure to comply with an Order.
Due to access to justice principles it is important to take a football analogy and view this as there being yellow and red cards. Alternatively, some may say that the court does not apply a “one strike and you are out” mindset.
The court will consider the appropriateness of a sanction with consideration given to the Mitchell approach.
Making an application
Suffice to say, the courts are not rubber stamping.
Based on the case law to date it is possible to make broad brush assertions about where CPR r 3.9 is likely to apply and where it is less likely to apply.
Failures where 3.9 is likely to apply
- precedent H;
- witness statement;
- reliance upon written reports of experts;
- service and amendments to statement of case
- applications to set aside default judgment (NB:// CPR r 13.2 has its own criteria, and see Samara v MBI decision).
Failures where 3.9 is less likely to apply
- Part 18 requests
- Part 36 offers
- Disclosure of list (and inspection)
- Schedule of loss (and counter-schedule)
- Reply to Defence.
A lot of whether 3.9 applies is still in progress. In Mitchell, for example, at paragraph 34 there was mention of timetables being affected, and Porter Capital referenced this too. You can also look to the effect in Summit Navigation.
Case law post 1 April 2013
I have already written about the Fred Perry case that preceded the changes.
The first post-1 April 2013 (new regime) decision was really clear in Murray v Dowlman. The judgment’s important point to take away as “there had been no prejudice”.
Points of interest to the court
- Promptness; and
- Good reason.
Harping back to Mitchell, the court stated that if there had been compliance then the Master would have given directions on the date set down for the hearing and the case would have proceeded in accordance with those directions towards trial.
What particularly aggrieved the court was that the failure to comply resulted in the following (at Para 39):
- an adjournment was necessary;
- a hearing was abortive;
- to accommodate the hearing within a reasonable time, the Master had to vacate a half day appointment which had been allocated to deal with persons affected by asbestos-related diseases.
If you take anything away from this article it should be: the Court is going to be against your client if you take up excessive amounts of court resources.
Staying on the precise claims affected by Mitchell, people dying prematurely from asbestos-related diseases cannot afford the time to be messed around with delays.
Applying that around the country, if you are in a busy court which is swamped with (mostly family cases), then a major impact on their caseload is more likely to result in you failing. If however you are in somewhere like a quiet coastal court in remote Wales or similar where they are not inundated with litigation, you may enjoy greater success.
What is relevant to trivial?
- the nature of the breach by a party;
- what the CPR provides for;
- the nature of the Court Order breached and the extent (e.g. minutes versus weeks);
- the knock-on effect of the breach; and
- any potential consequences on court resources caused by the breach.
Examples of trivial post-Jackson include:
Aldington v ELS – where there was a group litigation order and a fraction of the 150+ claimants could not sign their statement of case in time. The circumstances involved holidays booked in advance of litigation. Due to the low percentages in breach of the overall GLO, it was deemed trivial.
Bank of Ireland v Philip Pank - this came down to a certification of costs on a budget. There was a bun fight over the wording used, but the court treated the intention of the party in default as being to certify a budget, as opposed to failing to file and serve a budget. This was again, trivial.
Lakatami Shipping v Nobu - where due to the gamesmanship of the opposing party, there was a breach of minutes. The non-compliance was trivial as the opposing party suffered no prejudice (nor was any prejudice suggested).
This is still a developing area, but I would stick to the general rule of thumb of default judgments.
Promptness means acting quickly. Hours or days may improve your chances, but weeks or months will not. It’s self-evident advice so I will stop here.
The court will ask itself if the party in default has a good reason. This is normally where a default has occurred by circumstances outside of the control of the party in default, such as experts.
It is likely that this can be framed as the circumstances of the case.
Being honest, ‘trivial’ is still not clear (consequences? delay?) and ‘control’ of the parties remains ambiguous.
Strategy and tactics to apply to 3.9 applications
You can take away from various authorities certain points that you may rely upon. As readers may be applying or opposing applications, it is important to provide both sides (but not a balanced approach!!)
Durrant v CC of Avon and Somerset Police – here there was a breach of an unless order. This is a great authority to rely upon if there has been a breach of an unless order as that means the other side had enjoyed 2 bites of the cherry. (Think yellow and red card mentioned earlier). You can emphasise the willingness of the court to intervene with litigation by referred to this authority.
Chartwell v Fergies – here the court provided an outline of what the claimant should have done. Here there was a breach on both sides therefore the court decided ‘a plague on both your houses’. Look to the CPR and witness statements in relying on this decision. It is a neutral decision due to both sides being in breach. You may want to rely upon this to ward off an application where you have been in breach, and they have also erred. It may be your pathway to a consent order.
Summit Navigation – here Mitchell was not applied in full vigour. You may emphasise that the missing of the deadline was not significant, i.e. the breach was trivial, and that the refusal to list a stay was considered unreasonable.
The best thing to do overall is to avoid getting yourself in breach in the first place, by setting a generous timetable at the outset regarding directions, such as using the buffer rule. I am told that the buffer rile is coming in on the 5th June 2014. If there is a tight timetable then you will need consent to vary.
- Serve whatever you can. I have already written about getting any old rubbish in. This will be your mitigation as you seek partial credit. You can always rely on this in your application to emphasise the efforts you made to comply.
- If your opposing party is to breach or has breached, then be silent! Let the clock start ticking on their breach and increase the time to increase your chances of winning on their failure to seek relief promptly.
- Take control of the timetabling. Do not wait until your next hearing to try and remedy a default. If necessary, pester the listing officer at the court. The court hates lost hearings and would not want to lose the use of a CMC or PTR by hearing an application for relief from sanctions (remember the asbestos-related cases affected earlier??!!) The opposing party will always rely upon Mitchell and emphasise the wasted costs due to the defaulter’s conduct. The Mitchell ‘factor’ will be the hearing date is lost.
- Depending on what side you are on, look at the costs. Some parties will argue that costs follow the event (correct!) but looking at Lakatamis, there is a costs aspect attached to it.
SO HOW DO I FRAME MY APPLICATION FOR RELIEF?
(1) Apply for relief from sanction pursuant to CPR r 3.9 and in the alternative the overriding objective.
(2) Lead with the overriding objective and then use 3.9 as your secondary position.