Jackson calls for a new approach to compliance
20 May 2014
Last month, we saw some balance being restored to the question of compliance with court orders when the Court of Appeal for the first time gave relief from sanctions in the Chartwell v Fergies case. At the same time that case made it clear that relief would not only be given in exceptional cases, and that a court should “consider all the circumstances of the case so as to enable it to deal justly with the application” when dealing with any relief from sanctions case. In that case, for the first time, the Court of Appeal gave relief from sanctions.
Jackson LJ in Hallam Estates v Baker
Today things have moved on again with the publication of a significant judgment in this area from Lord Justice Jackson himself in the case of Hallam Estates v Baker. The case is the first time since April 2013 when he has sat on an appeal which relates back to last year’s reforms inspired by his own report. It is therefore important reading from that aspect. But the significance also comes from the conclusions from the judgment which once again move the culture of litigation after the reforms towards a more collaborative approach, and which creates further balance in the system by encouraging a more measured approach to compliance, rather than adopting the strict Mitchell v NGN approach which we saw last November.
Buffer orders are now close
We knew already of course that buffer orders were on their way in, and we now also know that they will arrive as part of the rules on 5 June. From then onwards, in every litigated claim, the parties to that case will be able to agree between themselves an extension of time to take any step of up to 28 days. The only provisos are that the agreement has to be reached before the time limit has expired, it has to be in writing, and that the extension must not put at risk any hearing date such as a trial or a CMC. Courts will no longer need to make specific buffer-type orders after 5 June, as instead by introducing the change into the rules it will automatically be available in all cases after that date.
The new approach to extensions of time
Against that background, in Hallam Estates Jackson sets out what he sees as the expected approach from parties to litigation after 5 June, as well as before then where the parties can already agree extensions as they can where neither the order nor the rules provides a sanction in default. He says the approach should be that parties and their lawyers should see that agreeing reasonable requests for extensions of time is a practice that the court will encourage, and indeed will come to expect. He explains this on the basis that parties have a duty to help the court comply with the overriding objective of dealing with cases justly and at proportionate cost, and by acting in this way the parties will be saving themselves the costs of a contested hearing.
Duties of lawyers
And he speaks in the judgment to the lawyers as well, saying that as he sees it they will not be in breach of their duties to their clients in agreeing a reasonable extension of time when requested by the other side. He justifies this on the basis that the lawyers have that same duty to the court in ensuring that the case moves forwards in compliance with the overriding objective, part of which is ensuring that it only uses its appropriate share of the court’s resources. It would be using those resources unnecessarily if they were taken up pursuing arguments which should not in fact be taking place.
Jackson contrasts his report with what has happened since
In his first post reform judgment looking at the new rules themselves, he seems to be drawing a distinction between his original recommendations, and how the courts have implemented them so far. He says that he did not recommend either that parties should refuse reasonable requests for extensions, nor that courts should refuse to grant reasonable extensions. The implication perhaps being that this was the position we had ended up in a few months back at the end of 2013 and in the first few months of 2014, post Mitchell.
He also noted that the insertion by the Civil Procedure Rule Committee (who of course are responsible for the rules) into rule 1.1, which deals with the overriding objective, of the need on the part of courts to enforce compliance with rules, practice directions and court orders was a decision of that committee and had not formed part of his own recommendations. Seeming to distance himself from that part of the revised rules, Jackson said that the rule did not require courts to refuse reasonable requests of time.
The case itself concerned an application for an extension of time to serve points of dispute to a claim for costs. Jackson held that as the application had been filed at court before the time limit had expired, it was to be treated as an application for more time, rather than for relief from a sanction as it would have been had it not reached the court till after that time limit had passed. The original judge had been right to approve the application.
Where do we now stand?
So we now have a second judgment of the Court of Appeal in an area which on one party’s argument was a relief from sanctions situation, where the finding is in favour of the party which needed more time. This judgment is important not only because of who has given the leading judgment, but also because he seems to be commenting on not only how the Rule Committee have gone about drafting rules to introduce the recommendations made in his own report, but also on how other judges including in the Court of Appeal have been interpreting those rules.
No-one should deny that the stricter approach to compliance remains, and that incompetence and inefficiency are standards that will no longer be tolerated. However, the emphasis now is on encouraging parties and their lawyers to work collaboratively wherever possible, making use of the incoming buffer orders, and supporting the court in taking cases forward efficiently, but in a way that if the worst happens and a witness or an expert is unexpectedly late with their statement or their report, and if there is a reasonable explanation, the issue should now be capable of being resolved either with agreement of the opposing party, or with court approval. The judgment can be taken as encouraging parties to litigation to work together to achieve processes which lead to effective resolution of cases without the side show which we have sometimes seen since Mitchell of arguments about trivial aspects of non-compliance into which a lot of energy and expense has been poured.
For further information, please contact Simon Denyer, Strategic Legal Development Partner, on 0161 604 1551.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.