The recent Court of Appeal decision in Andrew Mitchell MP v News Group Newspapers Limited  EWCA Civ 1526 has sent shivers down the spines of lawyers across the UK.
The action in question was a libel claim which arose out of the Plebgate incident involving the Claimant and some police officers at Downing Street.
Following the Jackson reforms in the UK, a costs budgeting exercise has been introduced in many cases which requires that the parties lodge a costs budget in the required form not less than 7 days before the specified costs budget/case management hearing – the sanction for failing to do so is that costs are restricted to court fees only. The claimant's solicitors filed their costs budget 6 days late and at hearing, stated that the reason for the breach was pressure of work in the firm (although the reason given on the date of filing was that counsel were delayed in providing their figures). The Court did not accept that the explanation was a sufficient reason for the failure and imposed the sanction of the claimant's costs being restricted to court fees only. The claimant applied for relief from the sanction on the basis that the defendants had suffered no prejudice, would be receiving a windfall and that the approach adopted under the new Jackson regime should not be no tolerance but low tolerance. The Court took into account the court time wasted as a result of the delay, the failure of the claimant to engage in discussions of the budgets and the fact that there was no attempt by the claimant's solicitors to apply for extra time before running into difficulties. The Court noted that the firm representing the claimant was a small firm whose resources were stretched very thin. However, given all of the circumstances, the relief was refused. The claimant appealed arguing, inter alia, that the sanction was disproportionate.
The Court of Appeal, in dismissing the appeal, endorsed a quote from Master of the Rolls at the implementation of the Jackson reforms:
"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. Parties can no longer expect indulgence if they fail to comply with their procedural obligations.Those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds. But more importantly they serve the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the court enables them to do so."
The Court stated that the sanction will usually apply unless, (i) the breach is trivial or (ii) there is good reason for it. They were reluctant to encourage partial relief from sanctions as it could give rise to uncertainty.
The Court of Appeal recognised that outcome in the present case would prove an incentive to lawyers saying "we believe that the wide publicity that is likely to be given to this judgment should ensure that the necessary changes will take place before long."
The case has given rise to considerable comment – there are those who consider the sanction imposed disproportionate and unduly harsh while others feel it provides clarity and certainty in relation to the requirement to comply with the rules. Interestingly, in looking at the commentary, in-house counsel seem to be the least sympathetic towards the claimant pointing out that, as clients, they would require a costs budget as part of any risk assessment before commencing litigation or following receipt of a claim.
Failure to abide by court rules also arose in another decision of the Court of Appeal of 5 November 2013. In Boyle v Commissioner of Police for the Metropolis  EWCA Civ 1477 the Court was dealing with an appeal in relation to an expert's report on a catastrophic personal injury claim. The report had been served "absurdly late" – on the Friday before the trial due to start on the Monday. The Court stated: "There is the further important consideration that, as must now be well known the courts are becoming less and less tolerant of failure to serve expert evidence in accordance with previous orders of the court, just as they are becoming less and less tolerant of other breaches of court orders. It is not merely prejudice to the parties that matters. There is prejudice to the system of justice as a whole and, in particular, to waiting litigants if their cases are to be deferred because of delays in litigation currently before the court."
While we are still some way away from the Jackson reforms in Ireland, our judiciary will no doubt be watching with interest the developments in the UK and particularly the emphasis on ensuring justice for all litigants in relation to court time and resources and the view that stricter enforcement of court rules will achieve that end.