Judicial review costs budgets (plus general CPR rant)
Discussion
10 Pence Short said:
There was a strong argument that the courts had been too lax, allowing relief from sanctions too often, and that this was beginning to both cost a lot of money and clog up the courts to unacceptable levels.
The Jackson reforms seem to have been interpreted at almost 180 degrees to the previous position, which has led to what appear to be perverse results.
The balance is hopefully somewhere in the middle.
You can look at it in two ways, of course; on one hand it seems disproportionate to have a high value and/or high importance case struck out for missing a procedural deadline. On the other, if the case is so important, why are basic deadlines being missed without forewarning or prior application?
In Summit Navigation Ltd v Generali Romania Asigurare Reasigurare SA [2014] EWHC 398(Comm), Leggatt J said this:The Jackson reforms seem to have been interpreted at almost 180 degrees to the previous position, which has led to what appear to be perverse results.
The balance is hopefully somewhere in the middle.
You can look at it in two ways, of course; on one hand it seems disproportionate to have a high value and/or high importance case struck out for missing a procedural deadline. On the other, if the case is so important, why are basic deadlines being missed without forewarning or prior application?
"1. The decision of the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2013] 6 Costs LR 1008, on the effect of the new CPR 3.9, has rightly been described as a "game changer": see Michael Wilson & Partners Ltd v Sinclair [2013] EWCA Civ 1732, per Lewison LJ. It is important for litigants to understand, however, how the rules of the game have been changed and how they have not. The defendants in this case have sought to rely on Mitchell to turn to their tactical advantage a short delay by the claimants in providing security for costs which in itself had no material impact on the efficient conduct of the litigation. They have argued that the consequence of the claimants' default should be that the action remains permanently stayed.
2. Unlike the claimants' default itself, the defendants' response to it has had a very serious impact on the litigation. The whole timetable for the proceedings has been derailed, significant costs have been incurred and court time has been wasted to the detriment of other court users. In other words, the reliance placed on Mitchell in this case has had the very consequences which the new approach enunciated by the Court of Appeal in Mitchell is intended to avoid.
…
53. … What has resulted in an otherwise unnecessary hearing and required the action to be re-timetabled is not the claimants' failure to provide security for costs on time. It is the defendants' response to that default. If the defendants had accepted the new bond when it was tendered on 6 December 2013 and consented to the claimants' application to lift the stay, the action could have continued without disruption. However, instead of adopting such a constructive approach, the defendants cited Mitchell and cried foul. They required the claimants to come to court for an order which was vigorously opposed. In consequence, several witness statements have been prepared, three large bundles of documents lodged, skeleton arguments totalling some 45 pages produced and a hearing of half a day required – all at considerable cost to the parties and to the detriment of other litigants with applications waiting to be heard. By the time of the hearing, the dates by which the court had ordered disclosure to be made (15 December 2013) and witness statements to be exchanged (24 January 2014) had come and gone, while the action remained stayed. The effect on the timetable and orderly management of the case has therefore been substantial.
54. In my view, the defendants' conduct in refusing to agree to lift the stay was unreasonable. The grounds relied on for arguing that the claimants' default was material were without merit. The defendants' stance disregarded the duty of the parties and their representatives to cooperate with each other in the conduct of proceedings and the need for litigation to be conducted efficiently and at proportionate cost. It stood Mitchell on its head."
Up and down the Country, this sort of thing is happening time and again. Stupid lawyer tricks are being played, and hidebound junior Judges are allowing the tricks to succeed. Time for the Court of Appeal to clarify how Mitchell is supposed to work, and how it is not.
Edited by anonymous-user on Friday 4th April 11:50
Breadvan72 said:
No one suggests otherwise, but the case law shows that trivial mistakes of other kinds are resulting in disproportionate sanctions (for example, case struck out because of a court fee arriving late).
I note that this doesn't always happen -- such as when the other side in my latest failed to pay on time. Tsk.7db said:
Breadvan72 said:
No one suggests otherwise, but the case law shows that trivial mistakes of other kinds are resulting in disproportionate sanctions (for example, case struck out because of a court fee arriving late).
I note that this doesn't always happen -- such as when the other side in my latest failed to pay on time. Tsk.carinaman said:
7db said:
Breadvan72 said:
No one suggests otherwise, but the case law shows that trivial mistakes of other kinds are resulting in disproportionate sanctions (for example, case struck out because of a court fee arriving late).
I note that this doesn't always happen -- such as when the other side in my latest failed to pay on time. Tsk.The law does not favour those who sleep on their rights, Carinaman. Also, knowing when to ask for help is one of those useful things in life. If you believed you had a medical problem, you would consult a doctor. You had a legal problem, but you did not consult a lawyer, and now it's too late. I am sorry to sound harsh, but I would rather it was like this than have a Nanny State guiding us in every step of our lives.
Mitchell continues to make waves, but the sensible Lord Justice Davis is on the case.
He has just granted permission to appeal and ordered an expedited hearing in yet another Mitchell case, and says in his reasons that the CA needs to give further guidance on Mitchell. He emphasises that case management has to be both robust and fair, and hints that there is too much robust and not enough fair.
Earlier this month he gave the lead judgment in a case in which the claimant made a boob but applied for and was granted relief from sanctions. The defendant opportunistically and tactically opposed this, and appealed, saying that the Judge had failed to apply Mitchell by not caning the Claimant for its error. The CA disagreed.
http://www.bailii.org/ew/cases/EWCA/Civ/2014/506.h...
Some soundbites:
“One of the further stated aims of the new culture evidenced in the new CPR 3.9, is the avoidance of satellite litigation. It is an unfortunate – although it is to be hoped temporary – by-product of the new rule that satellite litigation thus far seems not to have been avoided but if anything seems to have been promoted.
...
With the possibilities afforded by the new CPR 3.9, and when the stakes can be so high, satellite litigation such as has occurred here is therefore perhaps not wholly surprising: albeit most unfortunate. But the one sure way to circumvent such satellite litigation is for parties to comply precisely with rules, practice directions and orders: and, where that really is not capable of being done, to seek from the court the necessary extension of time and relief from sanction at the earliest moment.
I would also wish to repeat the point emphasised in Mitchell that appellate courts will not lightly interfere with a case management decision. Robust and fair case management decisions by first instance judges are to be supported.
...
It is also to be emphasised that the courts in considering applications under CPR 3.9 do not have and should not have as their sole objective a display of judicial musculature. The objective under CPR 3.9 is to achieve a just result, having regard not simply to the interests of the parties but also to the wider interests of justice. As has been said by the Master of the Rolls (in his 18th lecture), enforcing compliance is not an end in itself. In the well-known words of Lord Justice Bowen: "The courts do not exist for the sake of discipline". Such sentiments have not been entirely ousted by CPR 3.9, as to be interpreted and applied in the light of Mitchell."
He has just granted permission to appeal and ordered an expedited hearing in yet another Mitchell case, and says in his reasons that the CA needs to give further guidance on Mitchell. He emphasises that case management has to be both robust and fair, and hints that there is too much robust and not enough fair.
Earlier this month he gave the lead judgment in a case in which the claimant made a boob but applied for and was granted relief from sanctions. The defendant opportunistically and tactically opposed this, and appealed, saying that the Judge had failed to apply Mitchell by not caning the Claimant for its error. The CA disagreed.
http://www.bailii.org/ew/cases/EWCA/Civ/2014/506.h...
Some soundbites:
“One of the further stated aims of the new culture evidenced in the new CPR 3.9, is the avoidance of satellite litigation. It is an unfortunate – although it is to be hoped temporary – by-product of the new rule that satellite litigation thus far seems not to have been avoided but if anything seems to have been promoted.
...
With the possibilities afforded by the new CPR 3.9, and when the stakes can be so high, satellite litigation such as has occurred here is therefore perhaps not wholly surprising: albeit most unfortunate. But the one sure way to circumvent such satellite litigation is for parties to comply precisely with rules, practice directions and orders: and, where that really is not capable of being done, to seek from the court the necessary extension of time and relief from sanction at the earliest moment.
I would also wish to repeat the point emphasised in Mitchell that appellate courts will not lightly interfere with a case management decision. Robust and fair case management decisions by first instance judges are to be supported.
...
It is also to be emphasised that the courts in considering applications under CPR 3.9 do not have and should not have as their sole objective a display of judicial musculature. The objective under CPR 3.9 is to achieve a just result, having regard not simply to the interests of the parties but also to the wider interests of justice. As has been said by the Master of the Rolls (in his 18th lecture), enforcing compliance is not an end in itself. In the well-known words of Lord Justice Bowen: "The courts do not exist for the sake of discipline". Such sentiments have not been entirely ousted by CPR 3.9, as to be interpreted and applied in the light of Mitchell."
Mitchell revisited: Last week the Court of Appeal heard three cases raising questions about sanctions for non compliance with rules and orders. The Court invited the Bar Council and the Law Society to join in and make general submissions.
Lord Dyson MR, Jackson and Vos LJJ. Judgments reserved.
Televised extracts from the arguments here.
http://www.lawgazette.co.uk/law/featured-broadcast...
Lord Dyson MR, Jackson and Vos LJJ. Judgments reserved.
Televised extracts from the arguments here.
http://www.lawgazette.co.uk/law/featured-broadcast...
Edited by anonymous-user on Friday 27th June 21:18
singlecoil said:
I daresay you are pointing that out because he isn't the sort of person one normally associates with modesty?
Far from it - I mention it to show that (a) he not only pontificates on here about sundry points of legal interest but also has a successful practice in real life and that (b) to underline that when he posts about stuff like this, he does know what he's talking about.I can't say I've ever considered him to be particularly immodest based on what he posts in SP&L.
Breadvan72 said:
Mitchell revisited: Last week the Court of Appeal heard three cases raising questions about to sanctions for non compliance with rules and orders. The Court invited the Bar Council and the Law Society to join in and make general submissions.
Lord Dyson MR, Jackson and Vos LJJ. Judgments reserved.
Televised extracts from the arguments here.
http://www.lawgazette.co.uk/law/featured-broadcast...
Having watched that, it's crystal clear why there appears to be such a massive logjam in our courts.Lord Dyson MR, Jackson and Vos LJJ. Judgments reserved.
Televised extracts from the arguments here.
http://www.lawgazette.co.uk/law/featured-broadcast...
whoami said:
Breadvan72 said:
Mitchell revisited: Last week the Court of Appeal heard three cases raising questions about to sanctions for non compliance with rules and orders. The Court invited the Bar Council and the Law Society to join in and make general submissions.
Lord Dyson MR, Jackson and Vos LJJ. Judgments reserved.
Televised extracts from the arguments here.
http://www.lawgazette.co.uk/law/featured-broadcast...
Having watched that, it's crystal clear why there appears to be such a massive logjam in our courts.Lord Dyson MR, Jackson and Vos LJJ. Judgments reserved.
Televised extracts from the arguments here.
http://www.lawgazette.co.uk/law/featured-broadcast...
Good to hear that forum members are right at the top and in my case, bottom of this issue... 
Whilst trivial mistakes are one thing, this is a real world example of why things did need tightening up, and I don't think that has even fed through to the lower courts:
I'm a litigant in person, getting back my tenancy deposit and costs from a landlord leaving me, my wife and two year old daughter with no heating for 2/3 of a winter.
The Defendant is represented by two solicitors, one is a partner in the firm. All pre-action contact ignored, final warning responded to 3 weeks late, 10 days after papers served by the court on the defendant. The date to file an acknowledgment of service or defence to my claim is the 11th.
The solicitors file the defence 6 days late on the 17th. They also send it to the wrong court, despite the correct address being on the paperwork. The wrong court kindly forward it to the right court who send it back to the solicitors as they are timed out - I've already applied for judgment in default, and judgment was given.
A month later, I get the solicitor's application to set aside judgment. One sentence on the front, one sentence on the back which contradicts the other. I made contact with them in writing four times to ask what their grounds were, and what evidence they were relying on. They responded twice, avoiding both questions.
Come the hearing, the Judge opens by letting me know that he's read my witness statement where I exhibit the solicitor's avoiding emails about disclosure. Then, within ten seconds of opening his submission the solicitor asks to approach the Judges desk, a document in his hand that he's not disclosed to me.
The Judge rollicks him, but lets him introduce it. I don't oppose as I know the evidence doesn't help their case. Judge states that judgment was incorrectly given as the Defence was received the day before Judgment, and should be set aside. He asks if I have an comments.
I politely refer him to the guidance in the White Book of Civil Procedure, which he opens to page 800ish on my request which he reads aloud. He then alters his decision and says judgment was regularly obtained - hurrah! That's the grounds of the application done. Game over... not yet.
In short he then states that the Defence is fundamentally flawed as it is incorrect in law. Final nail in the coffin....
No. He then states that because the claim is for a 'significant sum' (literally just outside the small claim limits) that the 'overriding objective' means that judgment should be set aside...
WTF methinks... Professionally representation - makes every mistake under the sun. Ignore pre-action protocol. Defence late. Defence wrong court. No mitigating circumstances argued. Deliberate non-disclosure of documents. Grounds of application proven wrong. Defence wrong in law...
Yet, relief from sanctions is given due to the overriding objective...!
At the top end of the system where Breadvan is it seems things are getting petty over trivial failures. Yet, at the bottom end, solicitors are being allowed to get away with idiocy - I would suggest this is the reason for the reforms.
Whilst trivial mistakes are one thing, this is a real world example of why things did need tightening up, and I don't think that has even fed through to the lower courts:
I'm a litigant in person, getting back my tenancy deposit and costs from a landlord leaving me, my wife and two year old daughter with no heating for 2/3 of a winter.
The Defendant is represented by two solicitors, one is a partner in the firm. All pre-action contact ignored, final warning responded to 3 weeks late, 10 days after papers served by the court on the defendant. The date to file an acknowledgment of service or defence to my claim is the 11th.
The solicitors file the defence 6 days late on the 17th. They also send it to the wrong court, despite the correct address being on the paperwork. The wrong court kindly forward it to the right court who send it back to the solicitors as they are timed out - I've already applied for judgment in default, and judgment was given.
A month later, I get the solicitor's application to set aside judgment. One sentence on the front, one sentence on the back which contradicts the other. I made contact with them in writing four times to ask what their grounds were, and what evidence they were relying on. They responded twice, avoiding both questions.
Come the hearing, the Judge opens by letting me know that he's read my witness statement where I exhibit the solicitor's avoiding emails about disclosure. Then, within ten seconds of opening his submission the solicitor asks to approach the Judges desk, a document in his hand that he's not disclosed to me.
The Judge rollicks him, but lets him introduce it. I don't oppose as I know the evidence doesn't help their case. Judge states that judgment was incorrectly given as the Defence was received the day before Judgment, and should be set aside. He asks if I have an comments.
I politely refer him to the guidance in the White Book of Civil Procedure, which he opens to page 800ish on my request which he reads aloud. He then alters his decision and says judgment was regularly obtained - hurrah!
That's the grounds of the application done. Game over... not yet.In short he then states that the Defence is fundamentally flawed as it is incorrect in law. Final nail in the coffin....
No. He then states that because the claim is for a 'significant sum' (literally just outside the small claim limits) that the 'overriding objective' means that judgment should be set aside...
WTF methinks... Professionally representation - makes every mistake under the sun. Ignore pre-action protocol. Defence late. Defence wrong court. No mitigating circumstances argued. Deliberate non-disclosure of documents. Grounds of application proven wrong. Defence wrong in law...
Yet, relief from sanctions is given due to the overriding objective...!
At the top end of the system where Breadvan is it seems things are getting petty over trivial failures. Yet, at the bottom end, solicitors are being allowed to get away with idiocy - I would suggest this is the reason for the reforms.
Blackstone Chambers Press Release
Denton v T H White Ltd [2014] EWCA Civ 906
The Court of Appeal (Lord Dyson MR, Lord Justice Jackson and Lord Justice Vos) has given an important judgment reformulating the guidance on relief from sanctions under CPR r.3.9 following the landmark decision in Andrew Mitchell MP v News Group Newspapers [2013] EWCA Civ 1537. The Court says that “Mitchell has been misunderstood and is being misapplied by some courts” which is “leading to decisions which are manifestly unjust and disproportionate”. Dealing with appeals in three cases, and after receiving submissions from the Law Society and Bar Council, the Court has given new guidance setting out a “more nuanced approach” to applications for relief from sanctions.
The new approach can be summarised as follows:
(1) Identify the default and assess its “seriousness or significance”: relief will usually be granted for breaches which are neither serious nor significant (the word “trivial” used in Mitchell has been dropped);
(2) Consider why the default occurred (i.e. whether there is a good reason for it);
(3) Consider “all the circumstances of the case, so as to enable [the court] to deal justly with the application”. It is not the case that an application for relief from sanctions for a non-trivial breach for which there was no good reason will automatically fail. The particular factors mentioned in the rule (the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and court orders) “may not be of paramount importance [but] are of particular importance and should be given particular weight” (interestingly, Jackson LJ dissents on this point, saying that those factors have to be considered but not necessarily given greater weight than others). The promptness of the application, and other past or current breaches, will also be relevant at this stage.
The Court also emphasises the need for cooperation by the party not in breach: “it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and they will obtain a windfall strike-out or other litigation advantage… The court will be more ready in the future to penalise opportunism… Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient.”
The Court accordingly allowed all three of the appeals before it, reversing an “unduly relaxed” grant of relief in Denton v T H White Ltd (late witness statements causing adjournment of trial), and reversing the “unduly draconian” refusals of relief in Decadent Vapours Ltd v Bevan (claim struck out for late payment of hearing fee in breach of an “unless” order) and Utilise TDS Ltd v Davies (costs budget filed 45 minutes late, combined with delay in complying with another court order).
Denton v T H White Ltd [2014] EWCA Civ 906
The Court of Appeal (Lord Dyson MR, Lord Justice Jackson and Lord Justice Vos) has given an important judgment reformulating the guidance on relief from sanctions under CPR r.3.9 following the landmark decision in Andrew Mitchell MP v News Group Newspapers [2013] EWCA Civ 1537. The Court says that “Mitchell has been misunderstood and is being misapplied by some courts” which is “leading to decisions which are manifestly unjust and disproportionate”. Dealing with appeals in three cases, and after receiving submissions from the Law Society and Bar Council, the Court has given new guidance setting out a “more nuanced approach” to applications for relief from sanctions.
The new approach can be summarised as follows:
(1) Identify the default and assess its “seriousness or significance”: relief will usually be granted for breaches which are neither serious nor significant (the word “trivial” used in Mitchell has been dropped);
(2) Consider why the default occurred (i.e. whether there is a good reason for it);
(3) Consider “all the circumstances of the case, so as to enable [the court] to deal justly with the application”. It is not the case that an application for relief from sanctions for a non-trivial breach for which there was no good reason will automatically fail. The particular factors mentioned in the rule (the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and court orders) “may not be of paramount importance [but] are of particular importance and should be given particular weight” (interestingly, Jackson LJ dissents on this point, saying that those factors have to be considered but not necessarily given greater weight than others). The promptness of the application, and other past or current breaches, will also be relevant at this stage.
The Court also emphasises the need for cooperation by the party not in breach: “it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and they will obtain a windfall strike-out or other litigation advantage… The court will be more ready in the future to penalise opportunism… Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient.”
The Court accordingly allowed all three of the appeals before it, reversing an “unduly relaxed” grant of relief in Denton v T H White Ltd (late witness statements causing adjournment of trial), and reversing the “unduly draconian” refusals of relief in Decadent Vapours Ltd v Bevan (claim struck out for late payment of hearing fee in breach of an “unless” order) and Utilise TDS Ltd v Davies (costs budget filed 45 minutes late, combined with delay in complying with another court order).
Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff