(paragraph numbers refer to the Mitchell case)
A good day for rule merchants!
As a general rule, parties can no longer expect indulgence or grace following breaches of court orders or CPRs. If the court order or CPR says “do X or your case will be struck out“, that is what will happen irrespective of the justice of the case, e.g. the inability to make a £50,000 claim following a botched hospital operation. Equally, if the court orders a sanction without a warning, relief is unlikely to follow without exceptionally good reason.
It is important to remember that “do X or else” orders usually known as unless orders tend to follow initial less important breaches. One could argue that more severe penalties are fair following such initial warnings. However, there are a limited number of cases where such orders follow from civil procedure rules as a matter of course, which appear to be relatively less important on the face of it – albeit, they can result in the waste of court time. E.g.
- Failure to pay court fees on time, see CPR 3.7 (a court notice will list a time limit);
The plausibility of the court striking out a claim on a procedural issue is ringing in the ears of litigation lawyers up and down the country following recent reported decisions, in particular, the Mitchell case.
This is a stark warning to Litigants in Person, especially in light of the Court of Appeal decision in Tinkler v Elliott, which leaves very little scope for treating parties representing themselves differently to parties represented by lawyers – of course, there are few non-lawyers out there who are familiar with the CPRs. Litigants in Person beware!
Is this compromising the policy maker’s promotion of Litigants in Person and encouraging rule merchant lawyers to weave their way around justice?
The Old Rule
The old rule was applied as a 9 part tick box exercise, see the list of the key 9 factors below. Only in exceptional cases of repeated breaches would striking out or non-relief following strike out be contemplated. The usual consequence was to compensate any prejudice or time / money wasted by making a costs order against the defaulting party. The rules were servants; the justice in the case being of utmost importance.
CPR 3.9(1) , as it stood before, read as follows:
On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –
a) the interests of the administration of justice;
b) whether the application for relief has been made promptly;
c) whether the failure to comply was intentional;
d) whether there is a good explanation for the failure;
e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol;
f) whether the failure to comply was caused by the party or his legal representative;
g) whether the trial date or the likely trial date can still e met if relief is granted;
h) the effect which the failure to comply had on each party; and
i) the effect which the granting of relief would have on each party.
The New Rule, effective from April 2013
On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
Leading Case Andrew Mitchell MP v Newsgroup News Papers
This is the leading case intended to provide guidance on the application of the new CPR 3.9 and confirms a departure from the old flexible approach:
- There is a shift away from doing justice in the case and a move towards giving greater consideration to compliance with court orders and CPRs to promote general compliance and protect court time in the interests of other cases competing for court time.
- The old 9 factors are still relevant (as part of “all the circumstances of the case”) but are secondary to the 2 factors listed in the new CPR 3.9:
- Relief from sanction is possible through 2 gateways: 1) if the breach was trivial; 2) if there was a good reason for a non-trivial breach.
Facts: The main claim has been covered widely in the national press. Andrew Mitchell MP brought a claim for defamation against a number of newspapers following allegations that he used foul language against a police officer – the story is commonly referred to as Plebgate.
Issue: The main issue in the interlocutory matter was whether the first instance decision to limit the recoverable costs of the Claimant to court fees due to the Claimant failing to file a Costs Budget until 1 day before a CMC (it should have been done 7 days before per a Practice Direction).
Decision: Lower decision is correct. Most importantly, it was proportionate in light of the new emphasis on complying with CPRs and court orders – in this respect the revised CPR 3.9 and overriding objectives are consistent. In effect, the likely result that Mr Mitchell’s solicitors may need to continue to act without remuneration and be exposed to disbursements such as counsel fees was not compelling.
Scope for Relief: Triviality
The spectrum of breaches that will be considered trivial is expected to be very limited – there are no reported cases directly on triviality. However, LJ Richards in the Mitchell case provided useful obiter commentary:
- A breach is one that is “no more than an insignificant breach”, see Para 40
- A breach is where there has been a failure of “form rather than substance”, see Para 40
- A breach where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms, see Para 40
- Any application for relief must be made promptly, where a time limit is not specified.
- Any application for relief before expiry of a time limit will be looked at more favourably.
It is clear that a failure to file a Costs Budget until 1 day before a CMC (6 days late) is not a trivial matter where the Costs Budget could not be considered at the CMC.
Scope for Relief: Good Reason
If the matter cannot be proved trivial, then the only alternative option is for the defaulting party to prove good reason for the breach. This standard is more stringent than what it was before. Examples of what might constitute good reason in the Mitchell case include:
- Party / solicitor suffering from a debilitating illness, see Para 41;
- Party / solicitor being involved in an accident, see Para 41; or
- Time limit was unreasonable only with the benefit of hindsight.
- Usually, only factors outside the control of the defaulting party will be relevant, see Para 43.
Examples of what might not constitute good reason include:
- Overlooking a deadline due to excessive workload, see Para 41;
- well-intentioned incompetence, for which there is no good reason, should not usually attract relief from a sanction unless the default is trivial, Para 48
What about Litigants in Person?
The combination of the Tinkler v Elliott case and the Mitchell case puts 2 strands of government policy at odds with each other. How is any LiP meant to sensibly choose to represent himself rather than employ a solicitor or barrister when he knows that courts will expect him to follow CPRs (recorded with explanations for lawyers in 2 Volumes of hard backed text costing hundreds of pounds).
Steps to formulating an application for Relief from Sanctions
- Consider making an application to vary original order, per CPR 3.1(7), see Para 44, before an application for relief, per CPR 3.9
- Apply promptly
- Apply with supporting evidence re triviality and/or good reason
- Emphasise non-consequence of breach on court time; costs; lack of prejudice from non-compliance; early application; any historic plan to comply; good reason.
Policymakers are losing perspective in their endeavour to reduce tax spending with reduced court hours and fewer judges. The aggregate of a lack of justice in individual cases is less justice globally – simple arithmetics. Justice appears to be a forgotten ideal of civilised and democratic societies; comparable with the desirability to maintain a healthcare or welfare system.
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Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)