Two days of legal debates that could shape the future of litigation have begun in the Royal Courts of Justice.
Master of the Rolls Lord Dyson, joined on the bench by Lord Justice Jackson, the author of last year’s civil justice reforms, will hear three cases today and tomorrow concerning relief from sanctions.
They will attempt to use each one to provide clarity on the enforcement of new compliance rules and give courts definitive guidance on when to apply leniency following the Mitchell case.
In a packed Court 71, the judges heard the new regime described as resembling ‘an elaborate series of tripwires’.
Barrister Gerard Clarke, representing a party whose case was struck out for the late payment of court fees in Decadent Vapours Ltd v Bevan & Ors, said the outcome had been ‘as robust as case judgment can get’.
‘It is neither fair nor just,’ said Clarke. ‘This case is a plain example of where the pursuit of rigour and the enforcement of rules has become an end of itself. The court has lost sight of its essential function which is the administration of justice.’ The case was due to continue into this afternoon.
Earlier, Denton & Ors v TH White was an appeal against relief from sanctions being granted for a party that served six witness statements late, forcing a hearing to be adjourned.
Andrew McLaughlin, representing TH White, the appellant contesting the relief, said the original case judge had failed to apply the new rule 3.9 on non-compliance of court orders. ‘[The judge’s] approach was like a tail-end batsman who took a swipe at it in an unorthodox way with disastrous consequences,’ he said.
McLaughlin said parties had a ‘duty’ to inform the court if the circumstances of the case were changing. He added that the judge had made an ‘error in principle’ by believing the claimants to be ‘unsophisticated’ and therefore unable to adhere to instructions from the court.
Richard Stead, representing Denton, called for the ‘wider ambit of discretion’ to be honoured by the Court of Appeal.
He added: ‘To have a trial on the limited evidence was to some degree as much a waste of the court’s time as an adjournment.’
The third case, which is likely to be heard tomorrow, is Utilities TDS Ltd v Davies, where the court will decide if two trivial breaches aggregate so as to become one significant breach.
Dyson said a judgment in each is likely to be reserved and sought to temper expectations, telling the lawyers: ‘We can’t write a lexicon with a solution for all the different problems that can arise.’