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Active case management post-Jackson – avoiding sanction

Money iStock 000008683901XSmall 146x219Three recent cases have emphasised again the need for active case management. Sarah Appleby outlines the lessons to be learned.

The seminal post-Jackson judgment of the Court of Appeal in Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 (the “Mitchell Judgment”) has been widely commented upon.

In its simplest terms, the message is clear; if non-compliance with the relevant rule, practice direction or order is “properly regarded as trivial”, then the court will “usually” grant relief from sanction pursuant to CPR 3.9 where a prompt application for relief is made (see paragraph 40 of the Mitchell Judgment). Following the Mitchell Judgment, the courts have considered a number of cases concerning applications for relief from sanction made pursuant to CPR 3.9, and have sent a robust message with regard to the importance of active case management.

In Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624, the appeal was from the first instance decision to grant relief from sanction for non-compliance with an order for the filing and serving of witness evidence. The order had placed an obligation upon the defendant to “file and serve witness statements by 4 pm on 12 March 2013”, and had stated that the consequences of failing to comply would be that, “[t]he defendant may not rely on any witness evidence other than that of witnesses whose statements have been so served”. The defendant failed to comply.

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The chronology of the case is detailed, but in essence the breaches concerned the defendant’s failure to comply by initially serving certain of its witness evidence a day late. The claimant specifically drew this breach to the defendant’s attention. The defendant did not apply for relief from sanction until some two months later when it sought to rely upon further witness evidence. In addition, in the week before the commencement of the trial, the defendant made a second application for relief from sanction, as it sought to rely upon still further witness evidence. While the defendant was originally granted relief from sanction, with the trial adjourned to enable the claimant to consider the additional witness evidence, the claimant appealed this decision.

On appeal, the Court of Appeal made clear that the Mitchell Judgment had established a “robust approach” which needed to be followed. A failure to follow that approach constituted an error of principle, entitling the Court of Appeal to interfere with the discretion of the first instance judge. The Court of Appeal also made clear that a departure from the Mitchell Judgment was likely to “lead to a decision which was plainly wrong”, thereby justifying the intervention of the appellate court.

Although the Court of Appeal considered that the filing of witness evidence a day late could, taken by itself, be considered a trivial non-compliance, in the circumstances of the case the defendant’s application for relief from sanction had not been promptly made. The Court of Appeal specifically referred to the fact that the claimant had drawn the breach to the defendant’s attention, and had protested that the witness evidence had been served late. The Court of Appeal therefore considered that “[t]here can be no question of the defendant having been lulled into a false sense of security; and it was immediately obvious than an application for relief against sanctions would have to be made.”

In addition, in the context of an application for relief from sanction, the Court of Appeal made clear that where a court has already determined both a given deadline, and the sanction for a failure to comply with the same, factors such as the impact upon an individual’s reputation, the number of witnesses to be called, and other professional commitments, are not considerations which can properly carry much weight. Such factors should have already been taken into account when determining the timetable for the management of the case in the setting of the deadline.

An interesting question is what may have happened had the parties sought to agree an extension of time for the filing of witness evidence. In this regard, the judgment of the High Court in M A Lloyd v PPC International Limited [2014] EWHC 41 (QB) makes clear that the court is “under a duty under CPR 1.4 not simply to adjudicate passively upon the applications of the parties or to rubber stamp their reciprocal procedural indulgences but to actively manage cases”. In this case the court considered the Mitchell Judgment in making an order of its own initiative pursuant to CPR 3.3. The court had ordered the claimant to file and serve witness statements by a specified time, and the defendant to file and serve witness evidence in response, again by a certain deadline. The claimant failed to comply with the order, but no relief from sanction was made. The defendant applied for an extension of time to comply its obligation pursuant to the order. Immediately before the hearing of the defendant’s application, the claimant proposed a variation of the court timetable by consent. The claimant still did not make an application for relief from sanction.

The court considered CPR 3.8, which makes clear that where a party is required to do something within a specified time and the consequences of failing to comply are specified, the time for doing the act in question may not be extended by agreement between the parties. Accordingly, Mr Justice Turner held that even if there had been a concluded agreement between the parties in respect of an extension of time, it would have been ineffective unless the court were to be persuaded to formally endorse that agreement. Mr Justice Turner was not minded to do so in the circumstances. Accordingly, the court acting upon its own initiative debarred the claimant from raising certain issues at trial.

But what about simple human error? An unintentional mistake; admittedly avoidable, but nevertheless a harmless, absent-minded slip-up - could that justify relief from sanction? In Long v Value Properties & Anor (13 January 2014) the breach concerned a failure to comply with section 32.5 of the Costs Practice Direction, which applied pursuant to CPR 48.1. When serving the Bill of Costs, the claimant’s solicitor had inadvertently failed to serve the defendants with a statement setting out the relevant details of the success fee which applied under the Conditional Fee Agreement. Upon realising this error, the claimant’s solicitor sent the relevant documents to the defendants. The court considered itself bound by the Court of Appeal judgments in Mitchell and Durrant, and held that “oversight, or human error, is no longer regarded as a good reason” for non-compliance. The breach was not trivial, and therefore no good reason existed for granting relief from sanction.

These three judgments confirm the need for parties to actively manage cases. Parties need to be realistic as to what can be achieved, and should not commit to a timetable without first establishing that they (and their clients, witnesses, experts etc.) can meet deadlines. Further, even when parties have demonstrated active case management by seeking to agree variations to the court timetable or extensions of time, parties should not expect the court to simply “wave through” agreed amendments to scheduled timetables. It would appear that genuinely trivial non-compliances, justifying relief from sanction are likely to be few and far between. Further, even in those cases where an application for relief is contested, although the reason for non-compliance may be construed as a trivial one, the court will be keen to establish the timing of the application in the circumstances of the case. The sooner an application is made, the more likely it would appear that the court may be minded to grant relief for trivial non-compliance.

Sarah Appleby is a Solicitor in the Commercial Law Team at Hertfordshire County Council Legal Services.

Sarah is the Hertfordshire Litigation Special Interest Group co-ordinator. If you would like to join the h Group, please contact SarahThis email address is being protected from spambots. You need JavaScript enabled to view it..

 

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