It is four months since the Jackson Reforms first showed their teeth in Mitchell v News Group Newspapers Limited 1, putting to one side the previous rules for relief for procedural default (CPR 3.9.(1)(a) to (i)) and applying in their stead ‘the new more robust approach’. This new approach requires the courts, and therefore the lawyers conducting the cases, to regard two factors as being of ‘paramount importance’. These are (i) the need for litigation to be conducted efficiently and at proportionate cost and (ii) the need to enforce compliance with rules, practice directions and court orders. The other considerations listed previously under Rule 3.9 are no longer listed and so should now be given ‘less weight’ by comparison. The Court of Appeal acknowledged that ‘subject to the guidance that we give below’ the courts should still have regard to all the circumstances of the case, specifically fairness and ensuring that the parties are on an equal footing (Mitchell paragraphs 36-37). But what appeared to be given was all but taken away in the subsequent guidance which states that ‘The expectation is that the sanction will usually apply unless (i) the breach is trivial or (ii) there is good reason for it. It is true that the court has the power to grant relief, but the expectation is that, unless (i) or (ii) is satisfied, the two factors mentioned in the rule will usually trump other circumstances’ (Mitchell paragraph 58).
The Court of Appeal in Mitchell described the new more robust approach as a ‘shift of emphasis’ but for most civil lawyers it represents a sea change to consider it more important, for example, that a report or witness statement should be served on time than that both sides should be evenly equipped with the evidence they need to advance their case at trial. The question of whether it is right in principle to demote justice and fairness in favour of economy, efficiency and compliance is only worth asking if the new more robust approach has in fact achieved those aims. It is a question that many litigation lawyers have been too busy lately to ponder.
If you have not been Mitchell-ed yourself you probably know someone who has. Or perhaps you did the Mitchell-ing. What is certain is that since the Court of Appeal’s judgment the courts have been inundated with applications for relief from sanctions, and applications to extend time which would previously have been dealt with by agreement between the parties. The severe consequences and the increasing number of reported decisions mean that Mitchell applications require detailed preparation, lengthy hearings and voluminous pre-reading, so they are costly. Frequently the case stalls while the outcome of the hearing is awaited, so they cause delay.
Since Mitchell, the courts have applied the new more robust approach to refuse relief from sanctions for breaches in respect of numerous items including witness statements (Durrant v Chief Constable of Avon 2 and MA Lloyd & Sons Ltd v PPC International Ltd 3), expert evidence and counter schedules (Chambers v Buckinghamshire NHS Trust QBD 4), and costs budgets (Burt v Linford Christie 5). Relief has been granted in cases involving late service of particulars of claim (Aldington v ELS 6), a late disclosure list (Laktamia Shipping v Nobu 7) and late provision of security for costs (Summit Navigation v Generali Romani 8). In all three of these cases the breach was held to be trivial. But in the case of Chartwell v Fergies 9 relief was granted for failure to serve witness statements when the breach was not trivial and there was not a good reason for it. Globe J distinguished the facts from Durrant on the basis that both parties were in breach of the order to exchange witness evidence. He considered all the circumstances of the case, including the fact that the trial date was not at risk and that a robust application of CPR 3.9 would deprive the claimant completely of its claim and would not be just.
In Mitchell, the Court of Appeal reasoned that ‘once it is well understood that the courts will adopt a firm line on
enforcement litigation will be conducted in a more disciplined way and there should be fewer applications under CPR 3.9. In other words, once the new culture is accepted, there should be less satellite litigation not more’. This suggests that Mitchell litigation will be reduced for two reasons: firstly, because lawyers will stop missing deadlines and secondly, because a lawyer who does miss a deadline will not make an application for relief under CPR 3.9 because he knows that the courts are now adopting a firm line on enforcement. But will this work in practice? Few deadlines are missed deliberately, most being missed due to ‘well intentioned incompetence’ (not a good reason – Mitchell paragraph 48). Whilst greater vigilance is likely to achieve some reduction in the number of missed deadlines, well intentioned incompetence, or human error, will persist as long as litigation is conducted by humans. If a late document is excluded it will almost invariably reduce the case’s prospects of success and will raise the spectre of a professional negligence claim. In this predicament, is it right or realistic to think that the well-intentioned incompetent lawyer will simply accept that the document is excluded and will make no attempt to obtain relief? Surely in all cases of well-intentioned incompetence, the defaulting party will, and should, apply for relief.
The Court of Appeal’s stated expectation in Mitchell that, unless there is a good reason for non-trivial breaches, the sanction will usually apply, coupled with the fact that sanctions for trivial breaches will apply if relief is not sought promptly has led non-defaulting parties routinely to oppose applications in the best interests of their clients. Further encouragement to oppose was provided in MA Lloyd & Sons Ltd v PPC International Ltd 10 in which Turner J considered the defendant’s lack of opposition to be ‘unduly timid’ and declared that any agreement between the parties for an extension of time would not be effective because only the court could grant relief: ‘…even if the parties had purported to reach a concluded agreement on an extension of time this would not have been effective unless the court were to be persuaded formally to endorse it. This court is under a duty under CPR 1.4 not simply to adjudicate passively upon the applications of the parties or to rubber stamp their reciprocal procedural indulgences but actively to manage cases’’ (Lloyd paragraph 27). It is difficult to see how a requirement that the court must be persuaded formally to endorse relief in every case of default, regardless of agreement between the parties, could be a step towards reducing litigation.
But there has recently been a move to restore some control to the parties. In February 2014 the President of the Queen’s Bench Division approved a new model order for clinical negligence and mesothelioma cases which allowed the parties to agree a 28-day extension of time without the court’s approval and, in cases where an extension of more than 28 days is required, to submit an agreed email request to the court. The email must set out brief reasons for the need for an extension and confirm that it will not jeopardise any hearing date, together with the consent order. The court will then either grant the extension or require a formal application and hearing. There is a further modified version of this model order in use, which does require that the order be submitted to court because of doubt as to whether extensions of time for statements can be agreed without court involvement 11.
There will still always be breaches and contested applications for relief. But the new direction should avoid the need for a formal application in many cases. There is also the recent judgment of Leggatt J in Summit Navigation v Generali Romani 12 which warns respondents not to regard the opposition of an application as ‘a potentially free ride’ by reviving the risk of an adverse costs order against an unsuccessful respondent. This judgment is likely to reduce the number of contested applications, at least in cases involving potentially trivial breaches. It should also ensure that parties continue to adhere to the other directions and maintain the timetable and trial date. So, in time, the new more robust approach may yet achieve its aims but the question will remain whether what has been gained is worth more than what has been lost.
In the short term unpredictability remains a real difficulty for practitioners, with most people recognizing that the approach to stringency from court to court can be markedly different 13.