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Friday, 18 March 2016

Sanctions - Express Relief is best!

Apparently it is therapeutic to revisit earlier traumas.

It is hard to believe that it is only two and a half years since the Mitchell litigation changed the world. Who can forget those immortal words of the Lord Dyson, Master of the Rolls –

“There now has to be a shift away from exclusively focussing on doing justice in the individual case”. 

We then had the Civil Litigation equivalent of the Reign of Terror. There was the alarming case of Romano where a case was struck out due to a delay of one day advising the court of the outcome of a stay on proceedings. Then there was the action struck out following a delay of 45 minutes. Litigators could be seen wandering wide eyed as they worried about what minor oversight might bring an end to a promising career. As Rod Evans from FOIL famously put it – ‘We haven’t got a clue what we are doing.’

Then we began to come to earth with Denton in 2015. Dyson made it clear that some judges had been a bit over enthusiastic. The Court of Appeal simplified the test for relief from sanctions –

  1. Is the breach serious or significant?
  2. what is the reason for the breach?

Most importantly there was a third factor –

“The important misunderstanding that has occurred is that, if (i) there is a non-trivial
(now serious or significant) breach and (ii) there is no good reason for the breach, the
application for relief from sanctions will automatically fail. That is not so and is not
what the court said in Mitchell: see para 37. Rule 3.9(1) requires that, in every case,the court will consider “all the circumstances of the case, so as to enable it to deal justly with the application”.

Collective sighs of relief could be heard across the nation.

So where are we now? We may be back on planet earth but there is no room for complacency. The way we litigate has still changed.

Some recent cases are helpful –

In O’Connor v Pennine Acute Hospitals [2015] EWCA Civ 1244 the Defendant was refused permission to bring in a new expert on the first day of a trial, which would have led to an adjournment. I think we would all agree with that one. 

More recent cases are clear reminders of the need to stay focussed, particularly in relation to the need to apply promptly for relief.

In Gentry v Miller an application to set judgment aside was refused due to delay in making the application. This was case where there was a delay of several months. Interestingly there was a potential allegation of fraud which did not get the insurers off the hook.

Oak v Cash and Carry looks worrying at first. Indeed it has been reported by some as a finding that the Defence was struck out due to a two day delay in filing a Listing Questionnaire. In fact there was a breach of an unless order. But even that might not have been fatal to the Defence if they had applied promptly. Jackson LJ observed –

If the defendant had made an immediate application for relief at the same time as filing its PTC, or very soon after, I would have been strongly inclined to grant relief from the sanction of striking out. To debar a party from defending a £200,000 claim because it was somewhat late in filing a PTC is not in my view required by rule 3.9


So if you miss a deadline you must act immediately. 

There is a strong temptation to put the troublesome file to one side in the forlorn hope that the problem will go away. In fact it will get much worse. I would always advise that the file be passed to a colleague right away. Those of us who supervise should repeat this message - 'It is not necessarily the end of the world if you make a mistake - but it might be if you don't tell us!'.

Since Denton the Courts do have a more realistic understanding of the real world of litigation. They may grant relief. 

So long as you ask for it without delay!!

Thursday, 17 March 2016

The Fees go up and the Service comes down! - a rant

I received a letter from the HMCTS the other day. It gave very helpful advice about a further impending rise in court fees. The fee for a General application will soon go up from £155 to £255 – 60%. The fee for a Consent Order will go from £50 to £100 – 100%. The letter was unable to say when these eye watering increases will happen – ‘further information about the date when these increases will take effect will be provided..’ 

So presumably every law firm in the country will soon get a second letter!

In 2015 we saw fees for Issuing Proceedings rise, in some cases, by 600%.

In his speech about fixed fees on  28th January, Jackson LJ talked of  ‘a justice system which is exorbitantly expensive’ and said – ‘High litigation costs inhibit access to justice’ and ‘If costs prevent access to justice this undermines the rule of law.’ It is hard to disagree with those comments. It is a shame that the MOJ are not listening. Such huge and apparently random increases in fees will inevitably impact on Access to Justice. Some claimants can apply for exemption in fees but many thousands are not eligible.

But there is another problem. The quality of the service from the courts seems to decline in direct proportion to the levels of increase.

Just this week I did a CMC by telephone. After a long wait the District Judge was very apologetic. He had no file. He had no idea what the case was about and asked us to explain. This was a hearing that was listed months ago. Imagine the Mitchell/Denton implications if I had announced that I couldn’t find my file and didn’t know anything about the case.

Earlier this year I did a CCMC. The court in question sent out meticulous directions about what had to be in the bundle for the hearing. Many of the documents were already on the court file. So I spent several hours doing work once done by the court office. The Directions and budgets were eventually agreed but the court in question refused to allow it to be dealt with by telephone. So it was a choice between briefing counsel and driving 120 miles for a hearing that lasted 10 minutes. 

In another case one of my colleagues had a Clinical Negligence case listed for a CCMC in a London  County Court. It was due to be heard in January this year. It was vacated because the judge was ill. It has been relisted for July!

I suspect that since the Jackson reforms were introduced the cost of Civil Litigation has gone up not down – even if we disregard the satellite litigation.

I suspect that fixed fees for most litigation are inevitable. And firms who work quickly and efficiently should have no fears. But they will not reduce the overall costs of litigation whilst the government is intent on milking it for all it is worth.