I can hear the screams of the baby as it rushes down the drain in the company of the bathwater.
I have viewed the ‘new broom’ that has swept through litigation practice with mixed feelings. On the one hand it is undoubtedly right that many lawyers and their clients saw the case management orders as mere guidelines which the parties should consider but which, if they did not suit one of the parties, could effectively be ignored.
Some of the case law which had built up was, quite frankly, crazy. A defendant could fail to file a defence on time in the almost certain knowledge that he could still have judgment set aside even if he waited months. A party could be late exchanging their evidence, still not have complied with directions by the time the application was heard and then have another two weeks to allow the ‘unless order’ to run its course.
I ran a case where I applied for and was granted no fewer than three unless orders in respect of separate defaults. In respect of two of the orders, my opponent complied about an hour before the order ran out, and with the third, the court failed to notice the case was struck out and continued with it as if it was not.
The argument that a defaulting party was entitled to have their day in court and their penalty was in costs seemed to trump almost everything. I therefore agree that there were chunks of the Civil Procedure Rules that did not work.
That said, I am concerned that the pendulum has swung too far the other way. Litigation is an unpredictable process and many matters lie outside the ability of the parties to control. Clients have things to do other than servicing their litigation, and their view of the priorities may (entirely legitimately) differ from that of the courts. Yet it now seems as if a delay of only one day which prejudices neither party nor the proper administration of justice could result in the defaulting party being struck out even if neither party applied for it.
Parties who properly and effectively co-operate with each other and manage the case forward to trial in a cost-effective manner could find themselves in trouble even though the case is in good shape. That cannot, whatever yardstick is applied, amount to justice.
In the end it will be counterproductive, because far from encouraging consensus, this approach rewards technical and aggressive litigation over the reasonable co-operative approach. If you serve your disclosure list at 9am the day after the 4pm deadline your opponent will take the view that it is worth going for strike-out even though, in reality, they have suffered no prejudice at all. Parties will deliberately make their opponent’s life difficult in the hope that they can force them to miss a deadline.
Howard Shelley, QualitySolicitors CMHT, Walsall