Lessons for local authority litigators from the Plebgate affair

Police photo iStockphoto standard 146x219Alaina Galley of Hertfordshire County Council highlights the key learning points for local authority litigators arising out of the Plebgate costs litigation.

Who could have imagined that such an important decision for litigators around the country would have arisen out of an incident back on 19 September 2012, when Andrew Mitchell, the then Chief Whip, was accused of insulting a police officer outside Downing Street.

Facts – in respect of procedural issues of the case

Andrew Mitchell commenced a libel action against News Group Newspapers Limited, following a publication by The Sun of a story about the alleged exchange of words between him and a police officer on that fateful day.

Proceedings were issued during the pre-Jackson defamation costs management pilot scheme (the “Pilot Scheme”), which meant that both parties were required to file and serve a costs budget not less than seven days before the first case management conference (the “CMC”).

Andrew Mitchell’s solicitors failed to submit the budget on time. In addition, they did not discuss it with the defendant’s solicitors as they were also obliged to do under the pilot scheme. The costs budget was finally submitted the day before the CMC.

Master McCloud’s decision 

At the CMC Master McCloud was left with an important decision to make - what sanction should be applied for the blatant disregard of the Practice Direction for the pilot scheme, which provided that:

“4.1 During the preparation of costs budgets the parties should discuss the assumptions and the timetable upon which their respective costs budgets are based.

4.2 The parties must exchange and lodge with the court their costs budgets in the form of Precedent HA not less than 7 days before the date of the hearing for which the costs budgets are required.”

Rule 3.14 of the Civil Procedure Rules 1998 (as amended) (“CPR”) provides that:

“Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.”

Although rule 3.14 of the CPR was not applicable to this case, Master McCloud took this to be an “indication as to what an appropriate sanction…” would be.

An Order was therefore made that “The Claimant shall be treated as having filed a budget comprising only the applicable court fees …..”

The consequence of such being that Andrew Mitchell would be prevented from recovering all of his costs from the defendant if his claim were successful.

Andrew Mitchell made an application for relief from sanction pursuant to rule 3.9 CPR. The application was rejected on the basis that there had been no good excuse for the delay.

Master McCloud in her Judgment at Paragraph 60 states “ …the view I have taken is that the parties were well aware that this was a case for which budgeting would be required from the start and that the mere fact that a date is set for CMC is not supposed to be the starting gun for proper consideration of budgeting.”

Master McCloud gave careful consideration to the Overriding Objective of the CPR in her judgment.

 “The stricter approach under the Jackson reforms” was central to this judgment.

Andrew Mitchell appealed against Master McCloud’s judgment.

Court of Appeal decision

The Court of Appeal dismissed the appeal and acknowledged that the decision of Master McCloud was a robust one.

Paragraph 59 of the appeal judgment states: "The defaults by the claimant’s solicitors were not minor or trivial and there was no good excuse for them...Although it seems harsh in the individual case of Mr Mitchell’s claim, if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback.”

Lord Dyson goes onto say: "In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders"

Summary

It has never been more important than now to comply with court orders and the CPR, as pre-Jackson reforms excuses will no longer accepted as valid by the Courts. It is very clear that the courts will be taking a very robust approach to compliance. Non compliance is now far more likely to be punished.

Learning points

  • All deadlines should be diarised.
  • Costs must be considered from the outset of commencing a claim.
  • Make sure you comply with rules, orders and practice directions. If you run into difficulties then you need to enter into a dialogue with the other party as soon as possible and in any event before a default arises.
  • If a deadline can not be met then an application should be made promptly and before the default arises.
  • If a default does arise make an application promptly. If the non-compliance can not be deemed trivial then the onus is on the defaulting part to satisfy the court that relief should be granted. A court is likely to refuse an application if the default occurred without good reason i.e. circumstances outside the control of the defaulting party.
  • "Relief from sanctions should be granted more sparingly " than previously.

Alaina Galley is a Solicitor at Hertfordshire County Council. She can be contacted on 01992 555426 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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