New Civil Procedure Rules: handmaid or mistress?

Lord Esher MR’s famous dictum in Coles v Ravenshear (1907) stated that ‘the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure’. Referring to this, Lord Dyson in the District Judges’ Annual Seminar on 22 March 2013, said ‘these words must be treated with great caution in the 21^st century’ and that indulgence can no longer be given where parties fail to comply with their procedural obligations. The following case heard after the change in CPR 3.9 demonstrates that courts are taking such an approach.

In Jaswant Singh Bharj v Sukhwinder Singh, the Central London County Court considered an application on 7 June 2013 for relief from sanctions made on grounds that the solicitor with conduct, wrongly noted the dates for compliance set by court for which reason pleadings were filed out of time.

Facts

The case related to a dispute regarding a place of worship in Southall and the claim was essentially that the defendant had assaulted the claimant on many occasions. The claimant filed an application for an injunction issued in December 2012, in which the claimant gave an undertaking to the court that by 28 December 2012, Particulars of Claim would be filed. The matter was listed for a hearing on 8 March 2013.

The claimant’s solicitors sent the Particulars on 28 December 2012. On 8 March 2013, the court ordered the claimant’s counsel to file and serve a hearing bundle by 4.00pm on 15 April 2013. On 18 April 2013, HHJ Dight ordered that the claim be struck out unless the claimant filed Particulars by 4:00pm on 2 May 2013. On 2 May 2013, at 4.01pm, the claim had been struck out as Particulars were not filed.

The claimant’s solicitors eventually served Particulars on 9 May 2013, after expiry of the period stated in the Unless order. Following receipt of the order around 21 May 2013, the claimant’s solicitors made an application for relief from sanctions on the basis of an error in noting the date for compliance as 14 May 2013.

Claimant’s arguments at the hearing

Claimant’s counsel conceded that the old criteria relied upon in the N244 application did not apply to applications made after 1 April 2013 given the amendments to CPR 3.9. The claimant’s application stated that though the solicitor was present at the court hearing, since his writing speed was slow, the dates for compliance were incorrectly noted (as evidenced on the manuscript notes), though with ‘honest belief’ due to a misunderstanding of deadlines. 

Counsel for the claimant argued that the error made by the claimant’s solicitor, based at a small firm in west London (geographically some distance from the court), was an extremely human error. He had incorrectly recorded the date for compliance and that while the draft order was prepared by the claimant’s counsel, the claimant’s solicitor did not retain a copy of this, which was sent a few weeks later after court approval. As the Particulars of Claim had been served, there was no prejudice to the defendant and the trial date listed could still be met with the dates for compliance being made more compact and therefore justice could be done.

Defendant’s grounds of resistance

The defendant, represented by his solicitor Shehzad A. Qureshi, argued that the repeated failure to comply with court orders drove a ‘coach and horses’ through the interests of justice and that the casual approach to compliance was repugnant to principles of proportionality of cost and time as well as the court’s resources.

While counsel for the claimant conceded that the criteria relied upon in the evidence supporting the application was no longer valid, the defendant’s solicitor highlighted that the application had not been made promptly. The explanation offered while genuine, was wholly unacceptable and that though clearly the fault lay with the claimant’s solicitor and not the claimant, this was a matter between those parties for which the defendant should not be prejudiced.

Further, there had been a significant change in the rules and that the court could take a different approach had CPR 3.9 not been changed. It was argued that non-compliance was a principle matter with which the court must concern itself and that the interests of justice, which override other considerations, require the court to take account of the feeble regard in respect of compliance with earlier orders, in particular the breach of an undertaking given to the court and the ‘Unless’ order. It was also argued that if the case would be restored there would be significant prejudice to the defendant who would face difficulty in properly preparing for trial. On this basis, the only appropriate way for the court to dispose of the application was to refuse it and award the defendant his costs of the entire claim.

Judgment

HHJ Dight decided to rise for some 15 minutes before giving judgment. He referred to the recent changes to CPR 3.9 and that the only matters which to have regard to were sub-paragraphs (a) and (b) i.e. for litigation to be conducted efficiently, at proportionate cost and for the purposes of enforcing compliance with the rules, practice directions and court orders.

He stated that it was plain that the legislature had intended pre-eminence to be given to those two factors in considering such applications and that the change in rules signalled a ‘sea change’. HHJ Dight also said that the rules required him to consider all of the circumstances in the case.

After giving consideration to the rules, he concluded that in this case it was inappropriate to grant relief from sanctions and that the arguments relied upon by the claimant were insufficient to persuade the court for the following reasons:

a. There had been a change in the rules.

b. Both parties had attended the hearing and it was crucial that the dates for compliance were made as ‘Unless orders’.

c. The claimant had failed to comply with court orders, in particular the undertaking given to a High Court judge for which the claimant showed ‘scant regard’. HHJ Dight said that by posting the Particulars of Claim on the last day for compliance, it was obvious the undertaking could not have been complied with.

d. Despite the court’s prompting to file the Particulars of Claim, there had been no earlier attempt by the claimant to file them.

e. The purpose of the Unless orders was to enable the Particulars to be considered at the same time as a related case and so the two sets of proceedings which arose from similar facts could be tried together.

f. HHJ Dight stated that the date for compliance had not been ‘plucked from air’ and was in fact proffered by claimant’s counsel. While the court appeared to accept that the claimant’s solicitor was not aware of the dates of compliance and counsel went on a frolic of his own, it was held that the claimant was bound by dates proffered by counsel and ordered by the court.

g. Though it was established that the order of 18 April 2013 was sent late, HHJ Dight raised issue with the promptness of the application and stated that the ‘error by the solicitor should not be of support to an application for relief from sanctions. I regret the late sending of court orders but bearing in mind the parties were present and that the claimant was represented that failure does not persuade me that relief should be granted.’

h. To the argument raised by the claimant that the breach could essentially be remedied by an order for costs HHJ Dight said: ‘I no longer accept as a principle itself that as long as (the error) is compensated by costs that an application for relief should be granted.’

The application was refused and the claim remained struck out at 4.01pm on 2 May 2013.

Permission to appeal

The claimant sought permission on grounds that the factors stated in the decision were incorrect as disproportionate weight was given to previous errors, there was a failure to distinguish between errors of the claimant’s solicitor and the claimant and the application should have been granted so that the case could be dealt with fairly at trial. HHJ Dight refused permission simply stating that there was no real prospect of success.

Conclusion

This case shows that courts will now be far less willing to indulge any slippage, even where there has been an honest belief. It serves to demonstrate the ‘sea change’ in the rules and makes clear the paramount importance of compliance with the rules and orders of court.

With reference to Lord Esher’s famous dictum, it now no longer seems the case that the relationship between rules of practice and the interests of justice is that of handmaid rather than mistress.

Shehzad A Qureshi is a partner at MTG solicitors