In his final report into the costs of civil litigation in England and Wales, Jackson LJ expressed the view that:
‘… courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed.’
Jackson LJ’s solution to this problem was that the courts should adopt a more robust approach to case management. This article explains Jackson’s proposals in this respect and how those proposals were implemented when the Jackson reforms came into force on 1 April 2013. We then consider two recent cases which provide an insight into the judiciary’s likely approach to the new regime. The overall message is clear: parties who fail to comply with case management directions now run the risk of being deprived of the opportunity to present all or part of their case.
WHAT DOES ROBUST CASE MANAGEMENT MEAN?
In the fifth lecture on the implementation of his reforms, Jackson LJ explained that ‘robust case management’ entails:
- The delivery of effective case management directions by a judge with relevant expertise who is on top of the case.
- Moving the action along swiftly to settlement or trial.
- Firm enforcement of directions once they have been given – ie a ‘no nonsense’ approach.
In the same lecture, Jackson drew comparisons with reforms in the Singapore judicial system in the 1990s. During this time a new policy of strictly enforcing court orders was introduced which resulted in defaulting parties frequently having their claims or defences struck out. Jackson LJ commented that these ‘shock tactics’ produced ‘much discontent within the profession’ but also ‘electric change’. Jackson LJ clearly envisages something similar happening in this jurisdiction because he went on to say:
‘I hope that a similar change of culture can be achieved in England when the Costs Review reforms are introduced…Hopefully there will be fewer casualties of the process than there were in Singapore.’
This tough new approach was recently endorsed by the Master of the Rolls, Lord Dyson who said, in the eighteenth lecture on the implementation of the Jackson reforms, that:
‘Parties can no longer expect indulgence if they fail to comply with their procedural obligations.’
Lord Dyson also made the point that parties who fail to comply with rules and directions do not only cause delays and extra expense in their own proceedings; they also use up court resources, which has a knock-on effect on the proper administration of justice and other litigants. This means, according to Lord Dyson, that ‘dealing with a case justly does not simply mean ensuring that a decision is reached on the merits’. It is equally important to ensure that other court users are given fair access to the courts within a reasonable time. As Lord Dyson explained, this may necessitate parties who fail to exchange evidence on time being denied another opportunity to do so. In more extreme cases, dealing with a case ‘justly’ will mean bringing cases to a ‘premature end’ by striking out a defaulting party’s statement of case.
CHANGES TO THE OVERRIDING OBJECTIVE
One of the most significant changes that came into force on 1 April 2013 was the amendment of the overriding objective. Civil Procedure Rules (CPR) 1.1 now says (with the changes emphasised) that the CPR are:
‘… a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.’
Furthermore dealing with a case justly and at proportionate cost is now expressly stated to include ‘enforcing compliance with rules, practice directions and orders’.
Commenting on these changes, in Henning Berg v Blackburn Rovers Football Club & anor [2013], HHJ Pelling QC said the following:
‘On 1 April 2013, the overriding objective was radically amended. It now places emphasis not merely on the need to deal with cases justly but to do so at proportionate cost, expeditiously, to enforce compliance with the rules and orders and to allot to each case an appropriate share of the court’s resources.’
This reinforces the point that the concept of proportionality is not limited to ensuring that parties conduct their own litigation at proportionate cost, it also requires judges to ensure that parties do not use up more of the court’s time and resources than are proportionate and that a robust approach to case management is an important means of achieving this goal.
APPLICATIONS FOR RELIEF FROM SANCTIONS
From 1 April 2013, CPR3.9 reads as follows:
‘1) 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.’
The previous CPR3.9 contained a list of nine issues for the court to consider. The new rule, therefore, is shorter and more focused on achieving the effective enforcement of compliance with directions and other court orders. For example, there is no longer an express requirement, as there was in the old rule, that the court should consider the effect that the failure to comply and the granting of relief would have on all the parties to the dispute (although these issues will doubtless still be relevant ‘circumstances of the case’, which a judge is required to consider).
It is worth noting that Jackson LJ’s recommendation was that the:
‘… courts should be less tolerant than hitherto of unjustified delays and breaches of orders. This change of emphasis should be signalled by amendment of CPR Rule 3.9…’
In other words, while the changes to CPR3.9 are significant in their own right, they are also intended to reinforce a wider change of culture in which rules, practice directions and court orders are effectively enforced.
This culture of compliance with trial timetables will be enforced proactively as well as retrospectively. A new rule, CPR3.1(8), expressly gives judges the power to contact parties in order to monitor compliance with directions. As Jackson LJ commented in his final report, an enquiry from a judge as to how matters are progressing is more likely than anything else to galvanise the parties into action.
A NARROW ESCAPE
In Fons HF v Corporal Ltd [2013], the judge fired a warning shot across the bows of litigants about the importance of complying with directions. In that case, the parties failed to file their witness statements on time. The claimant was in a position to do so, but the defendant was not.
The judge said that he came ‘very close’ to refusing an extension of time for filing witness statements to either of the parties. He commented that the amended CPR now require the court to pay closer attention to the parties’ compliance with rules, directions and orders and that a failure to comply ‘is of itself a clear breach of the overriding objective and is likely to result in severe sanctions’. In the event, the judge relented, partly because the new rules had only recently come into force, and allowed a short extension until 4pm the following day. However, he went on to say that:
‘… all parties and the wider litigation world should be aware that all courts at all levels are now required to take a very much stricter view of the failure by parties to comply with directions, particularly where the failure to comply is likely to lead into a waste of the limited resources made available to those with cases to litigate’.
Two other points of interest emerge from the judgment. First, the individual solicitor responsible for the conduct of the defendant’s case said that he would be unable to prepare witness statements in time to comply with extended deadline because of family commitments. The judge said that this was not a ‘satisfactory position to adopt’ and said that somebody else at the same firm would have to be found to look after the defendant’s affairs in the absence of the solicitor concerned. Second, the judge was critical of the claimant for failing to file his witness statements on time despite the fact that the defendant was not ready to exchange them. The correct approach, according to the judge, would have been to lodge the statements at court and provide them to the defendant in escrow in a sealed envelope.
‘ENOUGH IS NOW ENOUGH’
In Venulum Property Investments Ltd v Space Architecture & ors [2013], Mr Justice Edwards-Stuart went a stage further and dismissed the claimant’s application for an extension of time to serve its particulars of claim, with the result that the claimant’s claim was time barred.
Under CPR7.4(1), particulars of claim must either be served with the claim form or within 14 days of service of it. However, CPR7.4(2) provides that particulars of claim must be served on the defendant no later than the latest time for serving a claim form. This means that particulars of claim must, like the claim form, be served within four months of proceedings being issued and claimants who leave service of a claim form until the last minute do not have an extra 14 days to serve their particulars. The notes to the White Book describe this as a ‘trap for the unwary claimant’.
In Venulum Property Investments, the claimant’s solicitors misread these rules. They left serving the claim form until the last possible day and, in the mistaken belief that they had an extra 14 days, failed to serve the particulars on time. They therefore had to apply to the court for an extension of time. Two of the defendants opposed the application because the limitation period for bringing a fresh claim against them had passed.
The judge gave a number of reasons for refusing the claimant’s application. The claim was not a strong one, the claimant had waited a long time to instruct solicitors and the claimant’s case involved a claim of bad faith which was pleaded ‘in particularly vague terms’ that did ‘not merit indulgence’. This led the judge to conclude that:
‘In my judgment, when the circumstances are considered as a whole, particularly in the light of the stricter approach that must now be taken by the courts towards those who fail to comply with rules following the new changes to the CPR, this is a case where the court should refuse permission to extend time. The claimant has taken quite long enough to bring these proceedings and enough is now enough.’
APPEALS
The early indications are, therefore, that judges will apply the 1 April changes to the CPR in the manner that Jackson LJ intended and that some parties will find themselves subject to case management decisions which they will regard as unduly harsh. In that context, it is worth noting that case management decisions are difficult to appeal successfully: see for example the statement in Royal & Sun Alliance Insurance Plc, Brian Smith v T & N Ltd (In Administration) & ors [2002] that the Court of Appeal should not interfere with case management decisions made by a judge who has applied the correct principles, and who has taken into account the matters which should be taken into account and left out of account matters which are irrelevant, unless the decision ‘is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge’.
By Geoff Steward, partner, and Jonathan Pratt, professional support lawyer, Macfarlanes LLP.
E-mail: Geoff.Steward@macfarlanes.com; Jonathan.Pratt@macfarlanes.com.