updated on 25 February 2014
QuestionHow has the courts' approach to non-compliance with procedural deadlines changed since the introduction of the Jackson Reforms?
In his final report following a comprehensive review of civil litigation costs published back in December 2009, Lord Justice Jackson expressed his concerns that “judges…are far too indulgent to litigants in default. This causes not only delay, but also unproductive waste of court resources in dealing with the effects of litigant failure to meet deadlines”.
While these concerns resulted in extensive amendments to the Civil Procedure Rules (CPR) in April 2013, it is only recently that a discernible change in the courts' approach to non-compliance with procedural deadlines has emerged.
The adoption of the Jackson Reforms in April 2013 saw a number of changes to the CPR, the most notable of which, for civil litigators, is the wholesale revision of the factors for the court to consider when deciding whether to grant relief from sanctions imposed for non-compliance with procedural deadlines.
The original list of nine factors for the court to take into account, detailed under CPR 3.9, has been replaced with the requirement to "consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need:
The clear intention behind these changes to CPR 3.9 is to make it much more difficult for both claimants and defendants to justify non-compliance with deadlines, and this strict approach has been endorsed by recent case law.
The most significant yardstick since the reforms were implemented is the Court of Appeal decision in Mitchell v News Group Newspapers Ltd (2013) handed down on 27 November 2013, in which Lord Dyson explicitly stated that "we hope that our decision will send out a clear message".
So what is the message that the Court of Appeal is hoping to send?
The background to the recent decision in Mitchell has been well publicised. The former chief whip of the Conservative Party, Andrew Mitchell MP, issued defamation proceedings against The Sun newspaper following the reporting of an altercation between Mitchell and police officers at the entrance to Downing Street, which became widely known as the "plebgate" scandal.
Under the CPR, both parties were required to prepare and discuss costs budgets which were to be filed no later than seven days before the Case Management Conference. While the defendant's costs budget was filed on time, Mitchell's solicitors filed their costs budget the day before the hearing. The reasons given for the failure to comply with this procedural deadline included a delay in receiving counsel's costs estimates, as well as the general pressures of litigation on another case being handled at the time.
The Court of Appeal rejected Mitchell's appeal following the refusal at first instance to grant relief from sanctions imposed for this failure to comply with the CPR.
The court held that relief from sanctions will only be granted in circumstances where the breach is trivial and a prompt application for relief is made, or, where the breach is not trivial, relief will only be granted if there is a "good reason" to do so. The burden of persuading the court that there is a "good reason" is on the defaulting party. Guidance from the court on what might constitute a "good reason" includes the party or its solicitor suffering a debilitating illness or later developments in the course of the litigation process which make it unreasonable to expect compliance with the original deadlines.
Merely "overlooking a deadline, whether on account of overwork or otherwise" will rarely amount to a "good reason" to grant relief following the revision of CPR 3.9 considerations.
The first instance decision to limit the costs budget to court fees only was therefore upheld by the Court of Appeal in circumstances where court fees amounted to less than £5,000 and the late costs budget in question totaled £506,425. Dyson commented that while "it seems harsh in the individual case of Mr Mitchell's claim, if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback".
The narrow message from the Court of Appeal therefore is that a failure to file a costs budget in time restricts recovery to basic court fees only; the wider, more momentous message from the courts is that non-compliance with any rule, practice direction or order will now result in severe sanctions.
Litigants in default should no longer expect indulgence from the court.
Cases decided in the relatively short period since Mitchell (including Durrant v Chief Constable of Avon and Somerset (2013)) only serve to entrench the courts' new, strict approach to dealing with parties who fail to comply with procedural deadlines.
While non-compliance with procedural deadlines in the past would rarely amount to anything more than the routine cost of an application for the defaulting party, Mitchell makes it clear that relief from potentially severe sanctions will now only be granted in exceptional circumstances.
Given that sanctions for non-compliance include the striking out of a claim or defence, this strict approach to the granting of relief from sanctions has only served to increase the importance of complying with deadlines.
The potential for claims being made against defaulting parties for professional negligence and the resulting impact on professional indemnity insurance premiums, not to mention the reputation of the firm, is also key to understanding the heightened awareness of the importance of adhering to deadlines.
While this change of approach is primarily concerned with deterring parties from failing to comply with deadlines set by the court and, ultimately, to reduce the amount of satellite litigation, it might simultaneously provide a tactical and procedural advantage for the party facing a non-compliant opponent.
It will be interesting to see whether this tough stance from the court will in fact reduce satellite litigation as intended. In the meantime, the clear message to litigators is that they can no longer expect sympathy from the courts for a failure to comply with procedural deadlines.
George Chaisty is a second-year trainee at Clyde & Co's Manchester office.