The decision in the ‘plebgate’ costs appeal is not just about how bad the consequences are when you don’t file a costs budget when you’re supposed to. It’s far more important than that. The appeal was really about the new post-Jackson approach to attempts to escape sanctions the court would otherwise impose for breach of any court order, rule or practice direction. This was the first opportunity for the Court of Appeal to influence how the new rules will be interpreted in practice. The court accepted that the outcome here was harsh. Mr Mitchell’s solicitors were in the wrong place at the wrong time.
In the past, although courts obviously wanted their orders to be obeyed, the deciding factor was always whether the court could still give substantive justice on the merits. This has all changed. Post-Jackson obeying the rules is what matters more than anything else. The Court of Appeal has enthusiastically backed the Singapore‘shock tactics’ outlined in Jackson’s 5th implementation lecture and in Mitchell the court referenced the 18th implementation lecture given by the Master of the Rolls:
“The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now.”
Whether this fits with the British sense of justice and fair play is a moot point. InHong Kong, for example, reform has taken a different track:
“106. Inthe Working Party’s view, “proportionality” should form part of a rule stating the underlying principles guiding case management, but without the specificity of CPR 1.1(2)(c) set out above [the pre-Jackson over-riding objective]. It should try to avoid spawning minute analysis and argument. It should instead be a reminder that common sense notions of reasonableness and a sense of proportion should inform the exercise of a judicial discretion in the procedural context.”
(Civil Justice Reform Final Report (Chief Justice’s Working Party on Civil Justice Reform, Hong Kong Special Administrative Region, People’s Republic of China) (2004), pages 48 – 54)
The hope of the English judiciary is that after many years of harsh rulings, myriad professional indemnity claims and armies of disappointed litigants railing against the injustice of the justice system, everyone will eventually learn to follow the rules to the letter and that the British public will learn to love a justice system determined by procedure ahead of merit.
But professional litigants such as insurance companies will inevitably try to take advantage of the slightest slip to win unmeritorious cases. Even if they eventually fail, the resulting satellite litigation will clog up the courts. We have been here before pre-Woolf with ‘automatic strike out’ under Order 17 Rule 11 which kept the Court of Appeal and indemnity insurers busy for years. The current Master of the Rolls Lord Dyson gave the lead judgement in the ‘costs wars’ case of Garrett.
Similarly to the court’s judgement in Mitchell, he held that anything other than a trivial breach would mean no costs were recoverable. This was ‘pour encourager les autres’. Fortunately, the prior avalanche of satellite litigation had already led to the Ministry of Justice to repeal the underlying regulations altogether, so the impact of his judgement was limited. Here we are not so lucky as we are only at the beginning.
The Jackson reforms resulted from the proposals of the single judge appointed by the then Master of the Rolls. Although the resulting report was adopted by the Ministry of Justice, there is no evidence that they ever really understood the outcome was to be such a significant change in social and judicial policy.
In the long run, once the true implications become clear, the British sense of fair play will not allow the Singapore approach to prevail. But in the meantime, there will be no mercy from the court, except for trivial breaches. You have been warned!