Report comment

Anon @ 11.14 - I am not saying disapply at will. I am arguing that to always apply the rules with very rigid effect is not, in my humble view, achieving justice.

It may be that the same result would have been achieved even if they had taken a wider view, similar to a S33 application with limitation or similar to a relief from sanctions application. The burden can remain with the Claimant to show that, for justice to be done, technical non-compliance with the rules should be excused.

Costs consequences could and should follow. The Defendant should not be prejudiced, and so time limits for anything they have to do should obviously be extended.

Personally, I see little reason for this to take into account whether the Claimant was represented or not. Solicitors make these mistakes too. To that extent, I disagree with the minority judgment of Lord Briggs (again, I appreciate this will cause his Lordship sleepless nights)

There is always a balance between rigidity and certainty of rules as against doing justice to the individual case. I simply believe the balance here is not right.