The High Court has refused to penalise a defendant who filed a costs budget one day late in the latest twist to the saga of dealing with breaches of rules set by the Jackson reforms.
His Honour Judge David Grant, sitting last month in the Technology and Construction Court, said the breach of civil procedure rules – which stipulate budgets are filed seven days before the costs hearing – was considered trivial.
The courts adopted the ‘trivial’ test as a yardstick for rule compliance after master of the rolls Lord Dyson referred to it in his landmark Court of Appeal ruling in Mitchell last year.
The claimant in Wain v Gloucestershire County Council referred to Mitchell in arguing that one of the defendants had breached CPR 3.14 and should be treated as having filed a budget amounting to only the applicable court fees.
But Grant, sitting in Birmingham, said both parties were ‘perfectly able’ to deal with the topic of costs management at the hearing despite the day’s delay.
The claimant’s representative made it clear they had suffered no prejudice as a result of the delay, and the breach caused no disruption to the court’s timetable.
Grant said: ‘Perhaps part of the problem in cases involving late filing of costs budgets is that the consequences for so doing as now stated in CPR rule 3.14 are extremely severe. Whether that should remain so is of course a matter for the rules committee.’
He went on to say that, in his experience and that of the mercantile court in Birmingham, ‘experienced and competent practitioners invariably have been able to deal with the process of costs management’ at the first hearing, even when the costs budget was a day late.
Grant ordered a transcript of the ruling to be made available at public expense because of current interest in these matters.
The judgment will be regarded as a sign that the court’s attitude to non-compliance of civil procedure rules is starting to soften.
It follows the Court of Appeal's decision last week not to interfere with a case management decision granting relief from sanctions for missing a deadline.
The High Court also dismissed a ‘Mitchell’ attempt to argue that a first hearing amounted to a case management hearing.
In Wain v Gloucestershire County Council, Grant referred to a paper written in March by Lord Justice Jackson, in which he said that parties ‘should not be allowed to exploit trivial or insignificant breaches by their opponents’.