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Latest news on more appeals on compliance issues

6 June 2014

The next part of the story on how strictly courts will deal with non-compliance by parties to litigation is now just around the corner. It’s not only six World Cup group games which are up for grabs on 16 and 17 June, some important action will be taking place in the Court of Appeal on those two days. This time, and for the first time since his reforms came into being, we understand that both Lord Justice Jackson as well as the Master of the Rolls, Lord Dyson, will be called upon to take the Mitchell issues further forwards when they hear three more appeals.

The story so far

You will recall that the position so far from the three most important cases in this area to date. In Mitchell v NGN last November, the Court of Appeal decided that when relief from sanctions was needed such as where witness statements or expert evidence were late, that relief would only be given if the breach was trivial, or there was good reason for it. Then in April, the Court of Appeal in Chartwell v Fergies Properties decided that relief from sanctions could also be given in a situation where there was blame on both parties, even though the failure to comply was not trivial and there was no good reason for it, if in all the circumstances of the case a decision to give relief was needed to do justice. Finally, Jackson LJ himself last month in Hallam Estates v Barker encouraged balance in the approach taken by litigants and their lawyers in dealing with requests for extensions of time to take specific steps, and on the part of courts in adjudicating on applications seeking extensions of time. Reasonable requests for extensions, said Jackson, should not be refused.

Buffer orders have arrived

Part of the Jackson message from Hallam Estates fitted well with the incoming buffer orders. These orders are now part of the CPR since yesterday and therefore are now capable of applying to all litigated cases. Where the time for taking any step is specified to take place on or after 5 June, even where it relates to witness statement or expert report exchange and so has a sanction in default, the time can be extended by agreement between the parties by up to 28 days or 4 weeks. The provisos are that any extension does not prejudice any hearing date, and that agreement in writing between the parties is reached before the deadline has expired.

As retrospective agreement is therefore not covered by the new rule, which means that the new power can only cover situations where the timeline which needs to be extended falls due now, rather than being historic. And it’s also clear that there needs to be a two-way exchange in writing confirming the agreement before the moment of exchange falls due. We expect an email exchange to suffice, but a telephone agreement will not. This should assist in dealing with on-going and future claims, but applications to court will still be needed if the step was due to be taken before 5 June, or if agreement in writing cannot be reached in time, or if more than 28 days is needed, or if it would affect a hearing date if the extension were agreed.

The next appeals – it’s all about triviality

We now know that three further appeals have been brought together and are now listed for a combined judgment to try to give further clarity in this area. This time, they all relate to the important question of triviality. There is no full detail yet available of what is involved in the cases but we understand that the questions being looked at are:

  1. What amounts to a trivial breach?

  2. How should the courts exercise their discretion when looking at trivial breaches?

  3. What happens when there is more than one trivial breach in the same case?

Utilise TDS v Davies

In this case, the Court of Appeal will be looking at the decision on appeal in a Manchester matter, from a court which in the past has been tough on applications for relief, and where relief was refused where a costs budget was filed at court 41 minutes late. This was partly because the defaulting party had earlier also failed to inform the court of the result of negotiations as required by another part of the same order. While the two breaches were each trivial on an individual basis, they were not when taken together, it was decided. As the breach now had to be seen as non-trivial and therefore requiring good reason in order to obtain relief, and as good reason had not been made out, relief was refused. The decision now being appealed was made back last February, in the period after Mitchell, but before Chartwell and Hallam Estates. Has the pendulum now swung back to a still-tough but sufficiently neutral position for a different decision to be given in the case next time around?

Other cases

The other cases being appealed are Decadent Vapours v Bevan which originates from Cardiff and Denton v T H White which is a Bristol appeal. In both cases the decisions being appealed are from the period between Mitchell and Chartwell, the judgment in Denton is from last December, and that in Decadent Vapours is from February. In those cases as well, where the decision being appealed was given in the very tough immediate post Mitchell era, and before the other appeals from the Court of Appeal, the interest is in whether the result will be different now that some sense of balance has been restored. Both are likely to involve late witness statements, expert reports or costs budgets.

Intervention and judgment

The Law Society has been allowed to appear on the appeal as interveners, putting the case of solicitors, and they will be gathering views from solicitors generally. Judgment is likely to be reserved, though we would expect to see it being published in July.

Expectations for the future

The need to have efficient systems operated by competent lawyers is not in doubt. The threat to the inefficient or incompetent will remain clear whatever the Court of Appeal decides this time round. But the forthcoming decisions will be influential generally, not only in defining the likely result in marginal cases, but also in adjusting the mood music for how litigation needs to be taken forward in the new post Jackson world. They will not though be the end of the story in the Court of Appeal. More cases will be needed on what amounts to good reason. Each part of Mitchell is now being looked at more closely, with case law needing to develop on each. You can see why it is said that this will all take some time, a year perhaps from the Mitchell decision itself last November, to start settling down.

The fact that parties are now expected to co-operate with each other is clear already from Hallam Estates and is confirmed by the current availability of agreements between parties to extend directions by up to 4 weeks. These cases now on appeal are likely to result in judgments reaffirming the tweaks to the Mitchell principles which we saw in Chartwell, and are likely to allow litigants to proceed with their cases if they fall short of required standards by only a small margin. But fundamentally, the Mitchell threat remains as a game-changer to lawyers who are incapable of running their cases properly under the new stricter regime.

Contact

For further information, please contact Simon Denyer, Strategic Legal Development Partner, on 0161 604 1551.

By Simon Denyer

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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.

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