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Compliance with Court Directions Post Jackson Reforms

27th November, 2013

The Jackson reforms to English civil litigation came into effect on 1 April 2013. Since then there has been much commotion about compliance with Court directions and the Court’s approach to applications for extensions of time/relief from sanction.

Putting The Jackson Reforms Into Practice

A suggested approach is that if you think you are likely to have to ask for an extension of time to any deadline, no matter how seemingly insignificant, you should issue an application.

Guidance indicates that the well run argument of “there is no prejudice to anyone as a result of our non-compliance” is not well received by the Court. Neither is “the other side have not complied either.” You should be particularly wary of making this argument if you are a claimant.

It is wise to seek agreement in the first instance, but even if given, you should still make an application well before any relevant deadline expires, or as soon as possible if that can’t be done. It is better to apply and get an extension that is not needed than to miss the deadline and suffer some form of sanction. The costs of making a paper application are relatively small and may be a worthwhile insurance.

If you issue an application prior to the deadline it will be for an extension of time. If you issue an application after the deadline, in many circumstances, it should be for an extension of time further/in the alternative for relief from sanction. It is much easier to convince the Court to allow an application to extend time if it is issued prior to the deadline expiring.

Effect of Jackson so far – an example

In a case that is to go to trial in March 2014 in which we acted for the defendant, a claimant served a witness statement which was months out of time. The order for service of witness statements included a direction that any statement not served in compliance with that order would not be allowed to give oral evidence at trial.

The claimant made an application for the witness to be allowed to give evidence but failed to state any of the relevant rules in the application and simply asked permission. The application was heard a few weeks ago.

The defendant stated that the application was for relief from sanction, although the claimant contended that it was not as no sanction had yet taken effect, despite the provisions of the order and of Rule 32.10. It was argued that those sanctions would only take effect at trial.

HHJ Butler treated the application as an application for relief from sanction and concluded that the overriding objective stated that the Court must have regard to compliance with rules and orders (CPR 1.1(2)(f)). The Judge refused the application and awarded the defendant’s costs of the application in the case, citing a number of instances of non-compliance by the claimant as his reason for doing so.

The guidance to be taken from this is that any application for a time extension must be treated as an application for relief from sanction, as the result of an application under part 3 generally or part 3.9 will be subject to a very similar thinking pattern.

The “Plebgate” litigation Mitchell v News Group Newspapers Ltd [2013] EWHC 2179 (QB) (“Mitchell”), in which it was decided that a lately filed costs budget should be treated as if one had been served stating Court fees only, is testament to the Court’s new “stricter approach” to non-compliance. That decision was subject to an appeal which was refused. Practitioners may avoid finding themselves in a difficult situation by ensuring they take a cautious approach.

The problem practitioners may have with this approach is “What if there is no sanction?” In such a circumstance it is well to bear in mind the decision of Master McCloud in Mitchel. In that case there was no sanction automatically imposed by failure to comply with a practice direction but one was imposed nonetheless. The Court of Appeal found that the master was right to do so.

Overarching guidance

In many cases in which relief from sanction has been refused, or a draconian sanction imposed, it is often because the offending party has not engaged with the Court. If you can show to the Court that you have endeavoured to comply, or put matters right, promptly and of your own initiative, you are much less likely to suffer adverse consequences.

Had the claimant’s solicitors in Mitchell done this, I doubt Master McCloud would have come to the same conclusion.

For more information on this or any other matter relating to litigation, please contact David Mann on 01244 405592 or email [email protected]

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