Jackson takes hard line on firm’s late court document

Topics: Litigation,Courts business

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Lord Justice Jackson has upheld a £211,000 claim won by default after the defendant missed their final chance to submit a court document.

Sitting in the Court of Appeal, Jackson, whose reforms formed the basis of civil case management rules, said Oak Cash and Carry’s solicitors had been too late in applying for relief from sanctions.


Attempting to defend a claim from an electricity supplier in British Gas Trading Ltd v Oak Cash & Carry Ltd, the defendant’s firm, south-east practice Bower and Bailey LLP, had already failed to file a pre-trial checklist within a three-month deadline set by a district judge.

After being given an 'unless' order, in effect extending the deadline by two weeks, the defendant failed to serve the checklist until two days after the new limit.

Even then, Jackson said the non-compliance could have been dealt with more leniently, but by the time Bower and Bailey applied for relief from sanctions a month later, the trial date had been lost. Judgment was given in the claimant’s favour by default.

‘The defendant’s lack of promptness in applying for relief is the critical factor,’ said Jackson, following a hearing last month.

‘When that delay is added to all the other factors, it can be seen that the defendant’s default has substantially disrupted the progress of the action.’

Testing the case against the judgments in Mitchell and Denton, Jackson added: ‘It is not possible to classify the defendant’s breach as anything other than significant and serious.’

The Court of Appeal heard that during the three months the defendant’s solicitors were given to comply, the solicitor assigned to the case was called away with personal difficulties.

Despite being a firm of ‘significant size’ with more than 40 solicitors, the court heard the case was handed to a trainee.

Jackson said a central issue was whether the non-compliance with the ‘unless’ order should be taken in isolation or added to the delays previously.

He added: ‘The court usually only makes an "unless" order against a party which is already in breach.

‘The unless order gives that party additional time for compliance with the original obligation and specifies an automatic sanction in default of compliance. It is not possible to look at an unless order in isolation.’

The default judgment against Oak Cash and Carry was allowed to stand.

Readers' comments (21)

  • "‘When that delay is added to all the other factors, it can be seen that the defendant’s default has substantially disrupted the progress of the action.’"

    Yes, because unless a party has filed a pre-trial checklist it is impossible to run a hearing. I am amazed life can still go on without these vital organs of justice.

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  • Scep - if litigants/lawyers are not sanctioned for failing on multiple occasions to do something they were expressly told by the Court to do does it not make a mockery of the entire system? No sympathy.

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  • That poor trainee. I'll bet he/she gets drop kicked by the chief as well. Internal supervision is at fault here.
    The Mitchell ruling was madness and although Denton softened the blow it still a stupid , venal and unjust way to design procedure.
    However the defendants cannot complain here. Claimant firms have had to put up with this. What's sauce for the goose etc.

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  • This merely confirms that the Jackson rules are the triumph of process over the application of justice.

    In any event, should he have been deciding on his own rules?

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  • Anon @03:39pm - it's not so much the delay, it's that Jackson struck them for not applying for relief. Which is really bureaucracy gone mad; why does anyone need to apply for relief for late service of anything? Because the late service ought of itself to carry with it a request for relief that could be denied there and then.

    As it is, Jackson might just have ended someone's career - and why indeed WAS he interpreting his own rules? Nemo iudex...

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  • I haven't read the case and only know what is set out in the article. Two points. First, Jackson LJ was not ruling in a case in which he has an interest. The old maxim 'nemo iudex' has no application.

    Secondly, Jackson is reported as commenting that although the solicitor with conduct of the matter was "called away with personal difficulties", this appears to have counted for nought as it was "a firm of ‘significant size’ with more than 40 solicitors, [and] the court heard the case was handed to a trainee."

    I know nothing of the firm, but I would not be surprised that in order to make the business at all profitable, there is little slack allowed in lawyers' workloads, and quite possibly no solicitor had capacity to take on the extra case. Hence the hapless trainee.

    It is always desirable to have spare capacity, and certainly wise to do so, but with fees cut as they have been, the economics do not make obvious sense. I wonder if the limits on fees will lead to more such cases, as firms find they have to run at full capacity all the time in order to run business at all?

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  • Simon - I suspect we will see more cases like this yes, certainly in the PI arena but also quite possibly in less valuable commercial litigation moving forwards to.

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  • I wonder how long the trainee had the handling of this case? Was it dumped on him at the last minute? Small wonder he was ill if that is how the firm treats its trainees. And from what I read it doesn't get much better in some firms after admission. Still, he may decide to give up on this erstwhile profession which could be the best decision he takes in the law, albeit the last one.

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  • Simon,
    Strictly speaking Jackson has no "interest" in the case, but he has an interest in not seeing his own rules interpreted in a way other than he would wish, or criticised by others of authority.
    Those who pass legislation, which of course the Jackson Rules are, should not then adjudicate on them. It is effectively about seperation of powers, and whilst not a major event, it is surely "bad form" for him not to have recognised the difficulty and avoided it.

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  • Mick C makes the point I should have made more clearly above - we do not trust Parliament to rule on legislation, so why should Jackson interpret his own rules?

    And is this really justice? I can understand throwing out a defence if they delay on crucial matters like the defence itself, but a pre-trial checklist that is 2 days late? Everything else is done; the evidence, witnesses, experts, whatever. Just get on with the trial.

    Or would that show up a lot of the administrative nonsense imposed on litigation as being pointless? Let's face it - without the computer systems promised in 1999 and still undelivered why does the court need this sort of thing? It does not have the resource to manage the case properly, and the parties do a better job of so doing.

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