Woolf aimed to transfer case management into the hands of the court – an ‘unless’ order is an inadequate remedy.
In his letter of 9 December, John Hall asks ‘what was wrong with a properly enforced “unless” order?’.
What was wrong was that the message conveyed was ‘don’t worry about complying with the rules for the time being, wait for an unless order before acting’.
One of the objects of Woolf was to take case management out of the hands of the parties and to put it in the hands of the court. If court orders may be ignored until an unless order is received (which is usually at the request of a party) then it follows that the court does not have the control intended. In the specific case of costs budgets, they are required for the costs management conference. If they are not available, court time and costs are wasted. An unless order is not an adequate remedy because the damage is already done.
It should not be forgotten that it is the legal representatives who set the dates for matters to be complied with at the case management conference. The answer therefore is: do not agree to dates you cannot comply with. If you did not know you would not be able to comply because you planned poorly, then the answer is to plan better. That does not help a litigant that has been failed by their solicitor, but if case management is to be in the hands of the court there is little real alternative.
The Court of Appeal has not stated that justice is second place to compliance. The overriding objective states that enforcement of compliance with the rules is in the interests of justice. If the Court of Appeal in Mitchell had not come to the decision it did, it would have been a departure from the overriding objective. I’m afraid Mr Hall’s complaint is around 15 years too late, because the issue lies with Woolf, not Jackson or the Court of Appeal.
In any event, Mitchell is much more fact-specific than many seem to appreciate.
The views expressed in this letter are mine and not necessarily those of Aaron & Partners LLP.
David Mann, solicitor, Pensby, Wirral