Practitioners will be conscious of the ridiculous practice that ensued in the lower courts following the ‘guidance’ dispensed by the Court of Appeal in Mitchell v News Group Newspapers  EWCA Civ 1537 as to the operation and application of rule 3.9 of the Civil Procedure Rules – Relief from Sanction.
In many courts, the tiniest infraction of either a Case Management Conference (CMC) direction specifying a time for an act to be done (even if it was not an ‘unless order’), or the breach of a time set forth in a CPR or practice direction (even if no default sanction applied), was regarded as engaging the ‘relief against sanction’ provisions with generally lethal effect.
Mitchell was eagerly embraced by a streamlined civil court system crippled by spending cuts and burgeoning cause list. The message conveyed in Mitchell was unmistakable – there was a new sheriff in town. Delay would not be tolerated. Strict adherence to the modern CPR procedures would be ruthlessly enforced.
Defaulters would effectively lose their place in the queue for the greater good – and like a game of snakes and ladders that has gone badly, they would have to start all over again. They would pay their and the other side’s costs, and if they could not – either through the exigencies of finance or statutory limitation – then tough luck.
Justice had lost its talismanic value and the criterion was whether the court had given defaulters the opportunity of access to justice. It was not three strikes and you are out; it was one strike and you are out. This was a new justice of finality, subject to the odd appeal and the potential to reissue.
Mitchell arrived in the month before lawyers completed their CPD points for 2013 – and the above interpretation of Mitchell was transmitted through the profession like a plague.
In Denton v White  EWCA Civ 906, the CoA faced conjoined appeals in Denton, Decadent and Utilise. What was common to all three appeals was that the time frame specified in a CPR provision, practice direction or order had been exceeded and that failure was delivered with a specified sanction.
In Denton, additional witness statements were served a year after the period specified and thus the sanction in CPR 32.10 applied ‘…may not be called to give oral evidence unless the court gives permission’. Nevertheless, the judge gave permission and the trial date was vacated.
In Decadent, a litigant was subject to an ‘unless order’ striking out their case unless court fees were paid on a given date. The fees were not paid on time, but a month later. The court refused relief from sanction.
In Utilise, the litigant’s costs budget was filed 45 minutes late and the litigant had not notified the court of the result of negotiations, as so ordered. The lower court refused relief.
The CoA allowed all three appeals, holding that the judges in each had not correctly interpreted or applied CPR 3.9 and the guidance in Mitchell.
As Lord Dyson MR opined at paragraph 3 of Denton ‘… Mitchell has been misunderstood and is being misapplied in some courts. It is clear that it needs to be clarified and amplified in certain respects.’
At paragraph 9, the CoA went on to remind practitioners that the costs budget in Mitchell had been filed six days late, a day before the CMC scheduled to consider those costs budgets; the delay had caused the CMC to be adjourned and disrupted the court’s list. The automatic sanction engaged; and that required the defaulter to obtain relief from sanction. Thus, explains Denton, the real reason the appeal in Mitchell was dismissed was that the lower court had correctly applied CPR 3.9. Since it was a matter of reasonable discretion the CoA could not intervene.
The CoA pointed out that CPR 3.9(1) is layered and that on its literal construction:
(1) the court’s first task is to identify the rule, practice direction or court order imposing the sanction; and
(2) next, the court considers all the circumstances of the case and the need for litigation to be conducted efficiently and at proportionate cost; and to enforce compliance with the rules, practice directions and orders.
But as the CoA explained, a more nuanced approach was needed.
The CoA was concerned that CPR 3.9(1) was not being pragmatically or uniformly applied. Worse, some judges had got hold of the wrong end of the stick entirely and adopted the stance that unless a default could be characterised as ‘trivial’; or there is some good reason for the default, the court was bound to refuse relief.
Denton specifically castigates such a judicial mindset and unequivocally eschews it as wrong.
The revised guidance
It is from paragraph 34 of Denton onwards that – depending on one’s disposition towards cynicism – the CoA either rewrites the Mitchell guidance or, as Lord Dyson MR would have it, ‘clarifies and amplifies it’. It does not really make any difference provided that the CoA guidance is properly understood and applied. The nine bullet points to be extracted are these:
- What Mitchell sought to explain was that factors (a) ‘efficiency and proportion’ and (b) ‘enforcing compliance’ in CPR 3.9(1) are of considerable weight. They were not to be casually disregarded. They were designed to engender a cultural change from the old lax approach to court timetables.
- But even when giving those two factors their significant weight, the court must consider ‘all the circumstances of the case’ when exercising a discretion to grant or refuse relief from sanction.
- The rules are not ‘trip wires’ and compliance with them is not an end in and of itself. The prime objective is to secure the litigant’s compliance with them because that is the route to the efficient, proportionate conduct of litigation. By these means the court can deal with cases fairly and justly.
- A fundamental objective is to make Case Management Directions that were realistic and achievable. The court should be careful about making ‘unless orders’. Such orders are designed to coerce compliance and are best used to bring about efficiency and costs savings at appropriate stages, if the defaulter persists.
- A key factor when considering relief from sanction is the need to avoid the waste of the litigant’s and the court’s resources with adjourned hearing and broken trial windows fixtures. Where a hearing or trial window has been set and non-compliance imperils this, the weight and importance of the factors in rule 3.91(a) and (b) magnify. Depending on all the relevant circumstances including promptitude, explanation, previous history of compliance, conduct and so on, the court will have to balance the competing factors.
- Nevertheless, in the vast majority of situations where one litigant has slipped in compliance but proposes to appropriately remedy it, the court expects the other litigants to be co-operative and consent to an extension of time or relief from sanction.
- The court will discourage contested applications for extensions of time or relief from sanction. In general, these should usually be disposed of by consent. See rule 3.8(4).
- One litigant is not by a side wind to gain a tactical advantage from the other’s default by refusing to co-operate. A party’s lawyers should think very carefully before advising their clients to adopt a strategy of non-co-operation. The litigants are required to assist the court to further the overriding objective. The court will robustly assess a party’s unreasonable refusal to agree to an extension of time or relief from sanction, and visit such a party with appropriate costs orders, or record its reasons for the use of the trial judge or costs judge at a later stage.
- Where contested, the court should ask whether the default is significant or serious in the context of the litigation. The answer will usually be obvious. If it is not significant or serious, an extension/relief should ordinarily be granted without the need to perform any balancing of factors. Where it is not obvious, the court ought to proceed to weigh and balance in accordance with the above.
The word ‘trivial’ as a rule of thumb test has been discarded in favour of not ‘significant or serious’. The core policy objectives the CoA seeks to pursue with the application of rule 3.9 are made explicit in Denton. Arguments about extensions of time/relief from sanction are to be discouraged unless the failure imperils a hearing date or trial fixture.
The court emphasises a more co-operative approach between litigants to assist the court in managing the case, steering it step by step and keeping it on track to the trial date. The shift in emphasis between Mitchell and Denton is that the CoA does not expect the litigants to eat up the court’s resources in squabbles about time and compliance, if the same can sensibly be resolved between them.
Perhaps the clue to this judicial shift is that the Law Society and Bar Council were invited to intervene in these appeals. It is possibly indicative that the Civil Appeals Office detected a worrying trend in appeals being lodged. It is most unusual that, within six months of Mitchell, three conjoined appeals involving the application of Mitchell reached the CoA.
All lower court decisions in issue; all purporting to apply Mitchell; all of them reversed.
Craig Barlow is a barrister at Ely Place Chambers in London; Jason M Hadden MBE is a barrister at St Ives Chambers in Birmingham