ON APPEAL FROM THE QUEEN'S BENCH DIVISION OF THE HIGH COURT
BRISTOL DISTRICT REGISTRY: HHJ DENYER QC: CLAIM No. 7BS90560
AND ON APPEAL FROM THE CHANCERY DIVISION OF THE HIGH COURT
CARDIFF DISTRICT REGISTRY: HHJ JARMAN QC: CLAIM No. 3CF30143
MANCHESTER DISTRICT REGISTRY: HHJ HODGE QC: CLAIM No. 3MA30330
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE VOS
||A2/2014/0126 (appeal from HHJ Denyer QC's order dated 23rd December 2013)
|Charles Graham Denton
Roger Thomas Denton
|TH White Limited
De Laval Limited
Part 20 Defendants/Appellants
||A3/2014/0767 (appeal from HHJ Jarman QC order dated 18th February 2014)
|Decadent Vapours Limited
|(1) Joseph Bevan
(2) Jamie Salter
(3) Celtic Vapours Limited
||A3/2014/0870 (appeal from HHJ Hodge QC order dated 24th February 2014)
|Utilise TDS Limited
|(1) Neil Cranstoun Davies
(2) Bolton Community College Corporation
(3) Watertrain Limited
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Andrew P McLaughlin (instructed by BLM LLP) for the Defendant/Appellant
Mr Richard Stead (instructed by Burges Salmon LLP) for the Claimants/Respondents
Mr Gerard Clarke and Mr Mark Vinall (instructed by DWF LLP) for the Claimant/Appellant
Mr Ben Blakemore (instructed by Beor Wilson Lloyd) for the Defendants/Respondents
Mr Vikram Sachdeva and Mr Jack Anderson (instructed by Linder Myers LLP Solicitors) for the Claimant/Appellant
Mr David Mohyuddin and Mr Ian Tucker (instructed by Mills & Reeve LLP) for the 2nd Defendant/2nd Respondent
Mr David Holland QC (instructed by Colemans-ctts LLP and the Law Society) for the Bar Council and Law Society
Hearing dates: 16 and 17 June 2014
Crown Copyright ©
The Master of the Rolls and Lord Justice Vos:
"Relief from sanctions
(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.
(2) An application for relief must be supported by evidence."
We shall refer to the matters set out in sub-paragraphs (a) and (b) of rule 3.9(1), where convenient, as "factor (a)" and "factor (b)".
The three appeals
"These considerations should now be regarded as of paramount importance and be given great weight. It is significant that they are the only considerations which have been singled out for specific mention in the rule".
"We recognise that CPR 3.9 requires the court to consider "all the circumstances of the case, so as to enable it to deal justly with the application". The reference to dealing with the application "justly" is a reference back to the definition of the "overriding objective". This definition includes ensuring that the parties are on an equal footing and that a case is dealt with expeditiously and fairly as well as enforcing compliance with rules, practice directions and orders. The reference to "all the circumstances of the case" in CPR 3.9 might suggest that a broad approach should be adopted. We accept that regard should be had to all the circumstances of the case. That is what the rule says. But (subject to the guidance that we give below) the other circumstances should be given less weight than the two considerations which are specifically mentioned."
"40. We hope that it may be useful to give some guidance as to how the new approach should be applied in practice. It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. The principle "de minimis non curat lex" (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms. We acknowledge that even the question of whether a default is insignificant may give rise to dispute and therefore to contested applications. But that possibility cannot be entirely excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.
41. If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event."
"the 'nature' of non-compliance cannot, in my judgment, be divorced from consideration of the 'consequences' of non-compliance. Whether or not a failure to comply with an order is 'significant' or 'insignificant' must involve having regard to consequences. In these cases there were no adverse consequences at all, either to the Defendant or to the efficient conduct overall of this litigation; on a purely statistical basis the default affects only 6% of the claims faced by the Defendant and the granting of relief is unlikely, with robust future case management, to have any effect at all on progression of the action".
"The position concerning the two witness statements that were served only just out of time is less clear-cut. [There follows a quotation from Mitchell] As we have said, the non-compliance in relation to the two statements, taken by itself, might be characterised as trivial, as an instance where "the party has narrowly missed the deadline imposed by the order". The non-compliance becomes more significant, however, when it is seen against the background of the failure to comply with Lang J's earlier order, and the fact that Mitting J, in extending that deadline, had seen fit to specify the sanction for non-compliance".
"In my view, the present case falls squarely within the category of case where the non-compliance with a court order can properly be regarded as "trivial". With the greatest respect to the Court of Appeal, I should prefer to use a different adjective, since the whole thrust of the new approach is to inculcate a culture of compliance with rules and orders and to dispel an attitude which trivialises even "minor" breaches. I would therefore prefer to say that the default in this case was not material. But whatever label is used, this case fits exactly one of the examples given by the Court of Appeal in Mitchell at  namely, "where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms"."
"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."
The criticisms of the Mitchell guidance
Analysis and guidance
Analysis of Rule 3.9(1)
The first stage
The second stage
The third stage
"(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 including
(a) the requirements that litigation should be conducted efficiently and at proportionate cost; and
(b) the interests of justice in the particular case."
This recommendation was rejected by the Civil Procedure Rule Committee in favour of the current version. In our opinion, it is legitimate to have regard to this significant fact in determining the proper construction of the rule. It follows that, unlike Jackson LJ, we cannot accept the submission of the Bar Council that factors (a) and (b) in the new rule should "have a seat at the table, not the top seats at the table", if by that is meant that the specified factors are not to be given particular weight.
Satellite litigation and non-cooperation
"The 1st Claimant, 1st Defendant, 2nd Defendant and 3rd Defendant having failed to file completed pre-trial checklists by the date required.
1. The claim be struck out unless the claimant files a completed pre-trial checklist, pays the £1090.00 hearing fee and the £110.00 checklist fee with the court on or before 4:00pm 19th December 2013.
2. The defence be struck out unless the defendants file completed pre-trial checklists with the court on or before 4:00pm 19th December 2013."
"1. The claim is stayed until 8 November 2013 during which period the parties must attempt to settle the matter or to narrow the issues.
2. By 4.00pm on 15 November 2013 the Claimant must notify the court, in writing, of the outcome of negotiations.
IT IS RECORDED THAT the parties have fails [sic] to file Forms H [cost budgets] in accordance with CPR 3.13 the parties are referred to CPR 26.3(6A)
4. They shall do so by 4:00pm on 11 October 2013, in default of which the provisions of CPR 3.14 shall apply."
Lord Justice Jackson:
"The conclusions to which I have come are as follows. First, the
courts should set realistic timetables for cases and not impossibly tough timetables in order to give an impression of firmness. Secondly, 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 upon the civil justice system. The balance therefore needs to be redressed."
The paragraph then goes on to reject the "extreme course" of refusing relief save in exceptional circumstances.
"The Law Society considers that the overriding objective is not applied as rigorously or as consistently as it should be. The most infrequently applied rules are those that are available to control the progress of a case. Lord Woolf introduced a number of ways in which this could be achieved (most notably CPR Parts 1.1, 1.4 and 3.1), but the experience of practitioners suggests that in practice these are not used fully or at all. Therefore we question whether further rules would bring any benefit unless they are applied fully. We suggest there needs to be a change in the attitudes of the judiciary and court users so that court rules are fully complied with and applied in practice."
"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."