Denton appeals, etc – a return to Unless Orders

So we have all had our wrists slapped with Denton et al.

Apparently we didn’t understand the Mitchell decision and took tactical advantage of slips by our opponents, which clogged up the courts. It therefore interfered with the County and High Court Judges who were busy playing golf and moaning about the cuts to their pensions.

When I say the courts I of course mean the County Court in [location]. This rebranding being needed so that people will not realise their local court has closed during the next year or two as it will no longer be “[location] County Court”.

Enough musings, crack on with Unless Orders

Enough has been written about the Denton appeal. What needs to be established is how we are going to find the new way to gain an advantage over defaulting opponents.

Sadly, the new way means going back to the old way.

Unless Orders never really went away – they just went out of fashion with litigators.

Why should we go back to the old way?

Quite simply, to lay a trap.

A single breach of directions is unlikely to attract a strong penalty such as strike out.

LJ Jackson made clear in his Fred Perry judgment that it would take a number of defaults before sanctions kick in. Think of it like a 3-strikes-and-you’re-out approach. It is unlikely you will get a yellow and red card system (no more sport references please – Ed).

The way forward

(1) As soon as a breach occurs, make an application for an unless order. It is unlikely that you will need to focus too much on giving notice; the Directions Order is clear.
(2) Offer to handle your Unless Order application by consent – always do this! I repeat, ALWAYS do this.
(3) Get the consent order sealed for an Unless Order as quickly as possible. Harass the Court staff and ensure it is sealed immediately to get your 7/14 days clock ticking.
(4) If the opponent is in breach then assert their claim is struck out, as an automatic sanction built into the Order.
(5) If they then apply for relief from sanction, there will have been 2 breaches on their part, and their endorsement of the consent order will go against them. After all, you placed reliance on their consent and they should not have agreed to something they could not comply with.
(6) Should your opponent comply then at least you will have got some costs and set down a trap for future defaults. It is a points scoring opportunity after all.
(7) All of the above is in your client’s best interests. Should you win, then you maximise their costs recovery; and in the event you lose there is a strong chance of minimising their exposure to costs based on non-compliance arguments.

Over and out.

Legal Orange.

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4 thoughts on “Denton appeals, etc – a return to Unless Orders

  1. For once I totally disagree with you.
    1. In Denton the Court of Appeal said that the making of peremptory orders should be very rare (see paragraph 44).
    2. I do not think anyone adopting these tactics will gain any advantage in the long term. Further the risks outweight the advantages. In fact paragraphs 39 – 43 makes it clear that parties playing “procedural” games could face major costs penalties which cover the entire action. You may be under a duty to consent to relief from sanctions and face stringent cost penalties if you don’t.
    3. I read Denton as meaning that Litigation should stop being about litigation. I doubt whether these strategies will be effective, and they could be counter-productive.

    • Hello Gordon,

      Thank you for your comment. I appreciate that we have an opposing view and I am not going to attempt to persuade you to subscribe to my approach.

      It may be that I didn’t explain myself properly so I will attempt a “round 2” to try and make up for the shortfall. Even if you maintain your view, it’s always good to promote discussion on tactics and civil procedure, so there is no downside to this.

      Firstly, you are correct that I am seeking to apply gamesmanship. Mitchell was the ‘floodgates’ that allowed us to take advantage of defaulters. Denton has closed the gap. It is a risky approach, however the effect of Denton is to leave us in limbo against defaulting opponents.

      Litigators are now hesitant to apply against a breach. This puts us back into the position we were in before the Jackson report. Paragraph 34 of Denton gives a background of how things used to be with tolerated breaches and non-compliance. We cannot go back to the old way in the new regime.

      We have demanding clients who want to punish defaulting parties. By taking no action, and while trying to manage expectations and explaining Denton to them, our clients view us as being impotent when the other side chooses to disregard an Order. They want action. We need to reach a compromise of seeking to appease the client, while not running into a strike out application at the first sign of non-compliance. The Unless Order is the appropriate mechanism in all the circumstances.

      Secondly, I am not trying to encourage non-cooperation between solicitors. I am asserting that if there has been a breach, you can allow the other side the rope with which to hang themselves. By offering to handle it by consent, this can be viewed as an attempt to cooperate and limit the use of court resources – making the application a paper-based rubber stamping exercise (probably by a competent Proper Officer who is trusted by the DDJs!)

      Thirdly, an Unless Order rarely makes it before a Court. It is a low risk approach in practice. I would recommend making an application if the other side has defaulted on a significant stage in proceedings such as disclosure or witness statements (I am on the fence with Part 18, but it may be useful here too because there is a defined Practice Direction to take the Judge through). You are unlikely to ‘go for it’ where the other side’s expert is problematic.

      Fourthly, the Court may make an Unless Order of its own initiative. Depending on the Court, this is likely to be for filing D/Qs and Pre-Trial Checklists. It is not asking the Court to reinvent the wheel. It is ‘at home’ with Unless Orders. The Court likes sticking with the tried and tested. As my sporting analogies tried to get across, it is a warning shot and I think a yellow card would be the closest thing to it. I consider it will succeed very well in circumstances where the buffer rule has already been exceeded.

      Fifthly, if the other side defaults on the Consent Order then they can apply for relief from sanctions. Depending on the default, it would be sensible to agree to their application for relief. After all, if they consented to your application it may be unreasonable not to consent to theirs, particularly if it is their only period of default throughout the litigation. I am not saying that you should automatically strike them out and then oppose their application for relief. Marcan Shipping (2007) is good guidance on the hesitancy of the Court to endorse such an approach and nothing from Mitchell or Denton appears to have any direct impact on this.

      Sixthly, and finally, I agree that Denton was the Court saying that litigation should go away and we should all save taxpayer money by sorting it out between ourselves, but litigation is here for now and we need to continue to deal with the system we are in.

      Cheers,

      Legal Orange.

  2. Pingback: CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POSTS | Civil Litigation Brief

  3. With respect to Gordon, he is misreading paragraph 44 of he majority judgment in Denton, It does not say that unless orders should be very rare. What is being said in paragraph 44 is that (i) judges should lay down achievable timetables and (ii) there should be a culture of compliance with those timetables. So, in this litigation utopia envisaged by the Master of the Rolls, there should be no need for the court to make unless orders: hence the comment that unless orders “should be reserved for situations in which they are truly required: these are usually so as to enable the litigation to proceed efficiently and at proportionate cost.”

    I am all in favour of applying for unless orders in the case of non-compliance and I cannot see any sensible Master or Judge criticising someone for seeking an unless order where there has been non-compliance. Indeed, the making of an unless order should be one of the basic tools in bringing the non-compliant party to heel. Applying for an unless order does not amount to playing procedural games or seeking inappropriate tactical advantage: it is drawing the default to the attention of the court and inviting the cout to do something effective about it. If the court considers that an unless order is an unnecessarily heavy-handed approach, it will decline to make such an order: see Marcan Shipping.

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