There have been a number of cases recently where the courts have been mindful of the Jackson reforms, and particularly the new relief from sanctions test under Rule 3.9 of the Civil Procedure Rules (CPR), when exercising discretion to grant relief following a failure to comply with the court rules and time limits. We consider three of them below.
In Venulum Property Investments Ltd v Space Architecture Ltd and others, the High Court adopted a strict approach to compliance with court rules and refused an extension of time for service of the particulars of claim.
The claimant's solicitors issued the claim form on 12 November 2012. This was towards the end of the six year limitation period. The claim form was served on 12 March 2013 (the last day for service). The particulars of claim were not served at the same time as the claimant's solicitors mistakenly believed they had an additional 14 days in which to serve. They had failed to take account of CPR 7.4(1) and (2) which provide that although the particulars of claim can be served within 14 days after service of the claim form, there is a long-stop deadline for service. The particulars must be served no later than the latest time for serving the claim form (i.e. four months after issue of the claim form itself).
Two out of the ten defendants refused to agree an extension of time for service of the particulars. The limitation period had expired by this time.
In considering whether to exercise its general discretionary power to extend time, the court adopted the relief from sanctions framework set out in CPR 3.9. The rule was amended on 1 April 2013 when the nine factors the court previously needed to take into consideration were removed. The court is now required to consider all the circumstances of the case, so as to enable it to deal justly with the application (including the need for litigation to be conducted efficiently and at proportionate cost), and to enforce compliance with rules, practice directions and orders.
The court considered that although the factors previously set out in CPR 3.9 should not be ignored, the emphasis had shifted so that it was required to take a stricter approach to failures to comply with matters such as time limits.
Considering all the circumstances, the judge refused the extension of time. He took into account:
- The stricter approach the courts must now take towards a failure to comply with court rules;
- The claimant's delay of over five years before instructing solicitors and the absence of a good reason for non-compliance with the relevant time limit;
- The weak merits of the claim against the affected defendants;
- That claims could still proceed against other defendants.
The claim against the two defendants was struck out.
In Fons HF v Corporal Ltd, the High Court was faced with an application to extend time for service of witness statements. A couple of extensions had already been agreed. Neither party had exchanged although the claimant was ready to do so. The defendant sought an extension.
The judge, although granting an order extending time for one day, advised the parties that he had come very close to refusing the extension to either party. The order against the defendant was an unless order. He referred to the amendments to the CPR which require the court to look at a party's failure to comply with rules, directions and orders, which is a breach of the overriding objective and can result in severe sanctions. The judge only permitted the extension as: the application was made so soon after the new rules had come into force; the previous extension had only recently expired when the application was made; and because the extension required was very short. Both parties had been in default, not just the defendant, as the original order had provided for service of the statements on the opponent, rather than for mutual exchange. The claimant should have lodged its statements at court and served them on the defendant in escrow, or sought mutual exchange.
The judge emphasised that the litigation world should be aware that all courts, at all levels, are now required to take a much stricter view of failure to comply with directions.
In Re Atrium Training Services Ltd v Smailes and others, the application for an extension of time (the fifth one) related to disclosure. The applicants had appointed new solicitors since the last order had been made and were now seeking e-disclosure. The respondents to the application encouraged the court to take the above referred to decisions and the new regime into account and take a strict approach.
The High Court agreed the fifth extension but on the basis that it was a final extension and the applicant's claim would be struck out if it failed to comply. The judge held the courts will scrutinise such applications more rigorously under the new rules to discourage the assumption that extensions would be granted where there would be no obvious prejudice to the opposition. However, the court held it was important not to go to the other extreme which would encourage unreasonable opposition to extensions which were applied for in time, were reasonable and did not involve significant fresh prejudice to other parties.
Things to consider
Although it is early days, these decisions mark a shift in the courts' approach to sanctioning compliance with court rules and serve as a cautionary tale for practitioners. Some robust Court of Appeal decisions will determine just how sharp Jackson's bite will be.