‘This case provides yet another example of a litigant treating an order of the court as if compliance were an optional indulgence’ – Turner J, M A Lloyd & Sons v PPC International [2014] EWHC (QB).

‘In other words, the relevance placed on Mitchell in this case has had the very consequence which the new approach enunciated by the Court of Appeal… is intended to avoid’ – Leggatt J, Summit Navigation Ltd v Generali Romania Asigurare [2014] EWCH 398 Comm.

At my first interview for a job as a personal injury solicitor post-qualification in 1985, the interviewer wore a badge which stated ‘sue the bastards’. This was a small but plangent symbol of the metaphorical trench-digging which parties to personal injury litigation practised at that time. Lord Woolf’s report in July 1996 led to the Civil Procedure Rules, and the declared intention to encourage the parties to work together to achieve a proper result with due celerity.

The rules introduced in 1999 produced a mirage of a systematically efficient process, which was quicker, simpler and cheaper, to be managed by a controlling judiciary, clinically leafing through the conduct of litigation to ensure purposeful action administered in a proportionate way. Trials were viewed as a procedural aberration, and sensible and able lawyers on both sides achieved proper settlements of many, many cases.

However, where once the CPR was attractive, over time its features almost entirely vanished. They were worn away by the battering of a flood of cases, overwhelming an ill-resourced court system, with the result that they lost their sense of purpose, and became virtually bankrupt of penalties for non-compliance.

Despite this, there were few detailed assessments and, therefore, one can rightly assume that costs were mostly proportionate.

At a time when one suspects the majority of experienced personal injury litigators on both sides were content with the process of attempting to correctly resolve litigated cases, Jackson LJ and his report shook the system.

It has become clear that there was less concern with the question of justice between the parties if it interfered with adherence to the orders of the court. The checklist of factors previously set out in CPR 3.9, when considering relief against sanctions, including the cornerstone of ‘prejudice’, has been replaced by a stubbier, more aggressive version centred on the need for:

  • litigation to be conducted efficiently under proportionate cost; and
  • to enforce compliance with rules, practice directions and orders.

This flowed from his lordship’s report and was underlined by him at an early stage in Fred Perry (Holdings) Ltd v Brand Plaza Trading Ltd & Another (2012) EWCA Civ 224, when he spoke of ‘a culture of delay and non-compliance’ which was ‘injurious to the civil justice system and to litigants generally’. Placing the civil justice system before the litigants is informative.

Lawyers on both sides are now distracted from addressing the real issues in the case of either proving or defending the claim, by ensuring compliance with the civil process, by making applications, preparing for hearings and, at present, preparing appeals. The seriously injured claimant, for one, is not necessarily at the forefront of the litigation.

Oddly, the opposition to practitioners who litigate is presently no longer from the opposing party, but from the court. There is a risk that the right of all citizens to pursue a claim for recompense arising out of a civil wrong may during this period become a little blurred as the eye is drawn to compliance with the procedural hoops that one now has to leap through.

‘Striking out’ has become an all too regular feature of the law reports. The interpretation of case law which both preceded and followed Mitchell v News Group [2013] EWCA Civ 1537, is unaided by a degree of inconsistency within the judiciary. Whereas previously within the CPR the courts were reluctant to permit an ‘unjustified windfall’ (Brooke LJ: Price v Price [2003] EWCA Civ 888) and ‘exceptional circumstances’ would have to be present to ‘stifle’ a party’s action because of ‘a procedural default’ (Sir Thomas Bingham MR – Costello v Somerset County Council [1993] (1WLR) 256) the opportunity to extract oneself from a failure to comply with a court order (which carries a sanction) is now limited.

From the case law it is evident that if one is struggling to comply with a court order, one should make an application to the court seeking relief before the expiry of the time limit stated in the order. If one does not, then one must do so ‘promptly’ thereafter. While there is no definition of this word, the cases suggest that a delay of more than a few days may well be viewed as dilatory. One then considers the nature of the non-compliance. If the breach is ‘trivial’, relief will normally be granted.

However, if the breach is not trivial, then one must show ‘good reason’ for non-compliance, which it appears has to be beyond the control of the non-compliant party. From Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624, the inference one gains is that a seemingly trivial breach acquires a non-trivial status because it breaches an ‘unless’ order. However, if an order of the court does not carry a sanction, why should one seek relief? The understandable conclusion is that satisfying the definition of ‘trivial’ in such circumstances will be akin to spotting the Siberian mountain lion – a rare but delightful pleasure.

One then falls back on explaining the ‘good reason’ why the non-compliance occurred. Following Mitchell, the court looks to circumstances beyond the ‘control of the party in default’. One reads this as relating to not only the conduct of the lawyer, but to the party to the action. The responsibility of clients is clear, and in practical terms a letter at the outset of the case setting out their responsibility to the court has value.

From the lawyer’s angle, case law has set out that ‘well intentioned incompetence’, over work, holidays, and staffing issues at the law firm does not assist. But what of dilatory/overworked experts and systemic delay in obtaining medical records? One fears that whoever controls the evidence, either contractually (experts) or through the disclosure process (medical records), will be held accountable.

One cannot foresee a ‘get out’ in such circumstances, and one can also see that the obligation on the solicitors to check the availability of their experts in respect of the preparation of reports will become more pronounced. On a more positive note, Leggatt J in Summit v Navigation Ltd held that the failure of the claimants or their solicitors to comply was due to the inefficiency of a third party and, therefore, granted relief.

Until the Court of Appeal provides further direction, one suggests the following practical guidance be adopted:

  • Frontload the preparation of a case before the commencement of proceedings (if one can). Being in a position to comply with court orders given at the first set of directions will make compliance more straightforward.
  • Advise clients and experts of their obligation to comply with the civil process. While there is no apparent sanction in part 35 of the CPR, the pervading opinion is that post-Mitchell the court will take the view that it cannot manage the litigation without the requirement that sanctions will apply if experts’ reports are not served in accordance with the court timetable.
  • Record your attempts, by way of reminder letters, emails and telephone calls, to obtain responses from clients, witnesses and experts, so that if necessary one can demonstrate to the court one’s efforts to comply.
  • Check court orders in terms of any sanctions that are stated, but equally be aware of the relevant CPR provisions in relation to service of witness statements, disclosure of experts’ reports and the failure to file a costs budget. Helpfully, at least from the Royal Courts of Justice, the sanctions attaching to the orders are now quite clear.
  • Diarise court orders in the same way one diarises limitation periods.
  • Note that there is currently no status in an agreement with the other party to vary the timetable without a court order when a sanction will apply.
  • Draft one’s applications fully and purposefully with one’s ‘good reasons’ for non-compliance, preferably extracted from previous (helpful) law reports.
  • Build sufficient, though reasonable, time into one’s proposed directions to allow the evidence to be properly collated.
  • Try to build into the directions the ability for the parties to agree to vary the timetable without order, before any non-compliance occurs, and without disturbing the court timetable. One hears that a change in the rules akin to those in clinical negligence claims to permit a 28-day period for varying the timetable may happen in the coming months.

Amid the noise that presently surrounds this issue, the unfairness of the apparent inflexibility to the failings, modest or otherwise, of practitioners contrasts starkly with the delay that one encounters within the court process, by which we are judged.

The cases cited, which have doubtless caused anguish and distress to the practitioners involved, have mostly resulted from delay in making the application for relief until after the period for compliance has passed. Yet one can wait for many weeks for a hearing date to consider one’s application to extend the period for compliance by a much shorter period.

No explanation is given for the delay on the court’s part. In reality, one suspects that the court system is already, or will shortly become, overwhelmed by applications flowing from the Mitchell judgment. Higher courts will be submerged in further appeals, and ultimately the Court of Appeal will collect a bundle of cases and try to provide further guidance for the benefit of the local judiciary and practitioners.

A sense of deja vu occurs for those who recall order 17 to rule 11 of the old County Court Rules, which introduced automatic strike-out for a failure to set a case down for trial by the end of an arbitrarily imposed 15-month period. They will recall that, sadly, rather like the incompetent teacher who punishes the whole class for the misbehaviour of the few, some modest failings were then unfairly penalised.

One wonders why we have reached this position. The introduction of the CPR in 1999 provided an opportunity for the courts to manage the civil process. Through lack of resourcing, the opportunity was missed. The ‘failure’, as it is now perceived, of practitioners to comply with court orders has resulted in part from the laxity of the management of cases resulting from that lack of resourcing, but also from a more flexible approach to the resolution of cases as encouraged by Lord Woolf.

It is noteworthy that such past laxity can still be revisited within the course of a current case. Able practitioners were, however, able to work together to achieve the right result for the litigants. The continuing lack of court resources suggests that the procedural requirements resulting from the post-Mitchell direction will stretch them even further, resulting, as Leggatt J found, in the paradoxical position that Lord Justice Jackson’s reforms, aimed in part at speeding up the resolution of cases, will likely result in a delay in doing so.

No one should sensibly disagree with the purposeful management of litigation by a well resourced and able local judiciary, working with the parties to achieve a just result. Alas, I fear that is some way away.

Cases reported in recent weeks in which a point was taken over an hour and 16 minute delay in serving a List of Documents (Lakatamia Shipping Co Ltd v Nobu Su and Others 2014 EWHC 275 (Comm)) and whether a costs budget was valid which did not contain a full statement of truth (Bank of Ireland v Philip Park Partnership [2014] EWCH 284 (TCC)) suggests that the spades are out and the digging of trenches has already resumed. Though one suspects that, rather like order 17 to rule 11, this may well be a heavy squall that soon passes.

Simon Allen, Slater & Gordon

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