England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		1 August 2013

MASTER McCLOUD:

1. This is my judgment on the Claimant's application for relief from sanctions which I imposed on 18^th June 2013 (judgment at [2013] EWHC 2179 (QB)) upon Mr Mitchell for two breaches of PD51D namely a failure to engage in attempts to discuss budgets and budgetary assumptions (PD51D para 4.1) and a failure to comply with PD 51D para. 4.2 namely a failure to file and exchange a budget no later than 7 days prior to the CMC.
2. The history and reasons for the sanction I imposed are set out in the extempore judgment I gave at the time and I will not repeat them, a transcript has been approved. The sanction was that Mr Mitchell would be limited to a budget consisting of the applicable court fees for his claim. In imposing that form of sanction I had regard to the new rule 3.14 which is not applicable to this case but which I considered was an indication as to what may be an appropriate sanction for breach of the requirement to lodge a budget no later than 7 days before CMC. That requirement was something which I considered to be in effectively identical form in PD51D and in the new rules, the key difference being that in PD51D no automatic sanction applies and any sanction was therefore left up to the court. I adjourned the cost budgeting to today to enable Mr Mitchell to apply for relief from sanctions.
3. It is common ground that PD51D applies to this case, and that the new wording of the overriding objective and of rule 3.9 as to relief from sanctions both apply to this claim. Rule 3.14 and indeed the whole of Part II of CPR 3 does not apply. There is no dispute that Mr Mitchell is in breach of PD51D paras. 4.1 and 4.2. There is also no dispute that I had the jurisdiction to impose such a form of sanction, under general management powers, but there is no agreement as to whether I was correct to do so, nor whether any relief from the sanction is appropriate.
4. I have statements from the solicitors for both parties and had the benefit of most helpful and focussed argument from experienced costs counsel Mr Browne QC for the Claimant and Mr Mallalieu for the Defendant. Neither counsel appeared before me at the hearing which gave rise to the sanction in issue.

Arguments

5. Not all points set out in the application notice were pursued and my judgment deals with the points which were addressed in argument.

Error in use of CPR 3.14

6. Mr Browne QC's argument for Mr Mitchell rested mainly on relief from sanctions under the new CPR 3.9, but nonetheless the correctness or otherwise of my original decision was the subject of argument. This was put on the footing that whilst I cannot sit as an appellate court from my own decisions it was said that I can vary or revoke orders under case management powers under CPR 3.1(7) and that I could do so, or I could grant relief from sanctions if I were satisfied that the order I had made originally was wrong and therefore unjust.
7. It is I think clear from the judgment I gave that there is no question that I applied CPR 3.14 to this case as a matter of law and if I had such would have been wrong since Part II of CPR 3 does not apply to this case. What is said in argument is more subtle than that. Mr Browne argued that, firstly, in adopting a sanction which was guided by the new form of rule 3.14 (in the sense that I saw 3.14 as a good indication of what may be an appropriate sanction in this case), I misdirected myself because the sanction under the new rules is stated as follows:

"3.14 Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.'.

8. It was noted that the above does not say "fails to file a budget in accordance with rule 3.13 above" (r. 3.13 being the rule which, after 1 April 2013, requires budgets at least 7 days before a CMC) and nor does it for example expressly provide a 7 day limit itself. Rather, on a strict reading it was argued that the rule in 3.14 applies to the case where a party fails to file a budget at all, rather than by any particular date.
9. This was distinguished from the 7 day limit set out in rule 3.13 which itself specifies no sanction for default. The Rules Committee could have but did not link the two, and it was argued that (given that the over-used term 'draconian' could be applied to the sanction in 3.14), it was appropriate to construe the provision narrowly. The suggested operation of the new 3.13 and 3.14 was that if a party failed to file a budget in time (r. 3.13), and then failed to remedy that default or apply for time, it would run the risk of being limited only to court fees if at the time the court came to carry out the cost budgeting exercise there was still no filed budget (engaging CPR 3.14). In this case the Claimant Mr Mitchell would not have incurred the sanction under 3.14 if that rule had applied, since he filed his budget the day prior to the hearing and had not 'failed to file a budget'.
10. The above of course all relates to the new rule 3.14 but the relevance, as I discern it in Mr Browne's submissions, is that if I was legitimately using the form of the new sanction in 3.14 as a guide to what may be proportionate, then I was misconstruing the circumstances in which that new sanction is in fact to be applied under the new rule 3.14, and that I should have taken into account that the budget by the Claimant had been filed on the day before the hearing and hence it was not the case that the Claimant had, at the time the matter came on for budgeting, failed to file a budget.
11. It was put in the following way in Mr Browne's skeleton argument (with counsel's emphasis):

"Even if [rule 3.14] was argued to apply, the prerequisite for such an order being made is that there is a failure to file a budget. The witness evidence of the Defendant has been at pains to illustrate, and it is common ground, that a costs budget was filed, albeit late. This is a draconian sanction and therefore must be interpreted literally. It is not appropriate, should it be attempted, to insert such words as "on time"; either the Claimant was in breach of the requirement or not. He was not and the sanction cannot be imposed."

12. Mr Mallalieu for the Defendant argued that (and here I summarise) the rules should be looked at in their totality and that to read r. 3.14, as proposed, in isolation, would enable a party to arrive at the door of the court with a budget and then escape the automatic sanction in 3.14. Further he referred to Sayers v Clarke Walker [2002] 1 WLR 3095 and Robert v Momentum Services Ltd [2003] EWCA Civ 299 to the effect that where an application for an extension of time is sought (ie for waiver of a breach of a time limit), this should be approached by reference to CPR 3.9 in any event so that on any basis this Claimant would need to satisfy me under CPR 3.9 whether what was sought was relief from sanctions properly so called, or an application for waiver of the 7 day time limit.
13. In my judgment Mr Mallalieu is correct, insofar as it is necessary for me to decide this point in view of the fact that it is argument about a rule which in strict terms does not apply here. The new rules 3.13 and 3.14 are intended to be part of a coherent whole and not to be hived off one from another and my construction of rule 3.14 is that it applies where there has been a breach of rule 3.13. To be clear: I read rule 3.14 as meaning that the automatic sanction set out there is triggered if a party fails to comply with rule 3.13, in other words is in breach of the 7 day time limit. That view is of course arguably obiter to this judgment.
14. I also accept that in any event the Claimant would need to address rule 3.9 whether this was in strict terms a relief from sanctions application or an application to waive breach of the 7 day time limit.

Error in use of analogy with CPR 3.14

15. Mr Browne argued that I was wrong in principle to 'apply rule 3.14 by analogy' though upon consideration of the transcript of the hearing it was not suggested by him that I had literally adopted that rule but rather that in applying my general powers to impose sanctions I had regard to what I considered to be a guide to an appropriate sanction. That was said to be an erroneous approach in the light of the Court of Appeal judgment in F and C Alternative Investment (Holdings) Ltd v Barthelmy and Anor. [2012] EWCA Civ 843.
16. In F and C the judge below had made a detailed order which imposed indemnity costs and interest penalties, and he had done so expressly by way of an order by analogy with CPR Part 36 which did not strictly apply to the case. The Court of Appeal reversed that decision stating:

"52. It was a fundamental feature of the judge's reasoning in this regard that an analogy could be drawn here with Part 36.14. Mr Browne's submission was that the judge simply was not entitled to have regard, by way of analogy with Part 36 for this purpose: and it was an error of principle for him to do so. Further it is an accepted general principle that for indemnity costs, rather than standard costs, to be awarded something out of the norm by way of improper or unreasonable conduct is called for. And here, Mr Browne said, the judge identified no such feature; he essentially relied solely on the supposed analogy with Part 36 to achieve the result that he did."

[…]

55. Thus this was not a Part 36 offer and the judge had no jurisdiction to make a costs order under Part 36.14. The judge's jurisdiction as to costs thus fell to be exercised under Part 44.3, as, indeed, the closing words of Part 36.14 mandate. The judge rightly accepted that he was required to exercise the jurisdiction under Part 44.3.

56. Once that position is appreciated, however, I have the greatest difficulty in seeing how the costs regime of Part 36, whether directly or by analogy, can properly be invoked. Part 36.14 represents a departure from otherwise established costs practice. It imposes a deliberately swingeing costs sanction."

17. Mr Mallalieu distinguished F and C on the basis that the decision was made in circumstances where the Judge whose decision was reversed on appeal had (by adopting interest and cost penalties allowed by Part 36, for an offer which was not made under Part 36) erred by failing to apply the settled law on the award of indemnity costs (Part 44.3) which he ought to have applied namely the need for some form of unreasonable conduct (or suchlike) which the court wished to penalise in costs, and about which the judge made no finding. Furthermore the context was the self-contained rules in Part 36.
18. The situation in this case was also to be distinguished because in this case the question of what sanction to impose was not governed by extant legal principles which I could be said to have been neglecting, and furthermore the court was in the unique position that new rules as to the overriding objective and as to relief from sanctions were being interpreted, and hence that it was perfectly proper for me to have regard to wording in other new rules introduced at the same time as part of the same reforms, even though not adopting them in law.
19. In my judgment F and C should be distinguished from this case. F and C was, as I read it, a case where the extant law on indemnity costs was overlooked and effectively amounted to an adoption of Part 36 where Part 36 did not apply. By contrast in this case PD51D is simply silent as to sanctions for breach of PD 51D paras 4.1 and 4.2, and the exercise for me was to consider what was the appropriate sanction given the new overriding objective. I am not satisfied that to look at CPR 3.14 as a guide to what may be regarded as a proportionate sanction in a closely analogous situation of a failure to file a budget on time was an error such that I could legitimately grant relief or vary or set aside my order based on it.
20. The Claimant did not argue that as a matter of principle I lacked the jurisdiction to impose the sanction that I did (as opposed to exercising that jurisdiction wrongly) and hence I do not need to consider that aspect.

Appeal required?

21. The above brings me to the question whether, even if I were satisfied I was wrong to have approached matters I did, I could legitimately either vary or set aside my order under CPR 3.1(7) or take it into account as a basis for relief rather than the affected party being required to appeal my order. I was taken by Mr Mallalieu to the case of Tibbles v SIG Plc [2012] EWCA Civ 518 in which the scope of legitimate application of CPR 3.1(7) was considered.
22. I refer to para 39 of that judgment per Rix LJ. I shall not quote in full but highlight the following:

"… considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion" … "… the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated".

23. Although most persuasively argued by Mr Browne I am not satisfied that I am entitled to review the correctness of my original decision in the circumstances of this case whether for the purposes of revoking an order under rule 3.1(7) or for relief from sanctions under rule 3.9. Were I to be concerned as to correctness of a decision I had made it would be open to me to stay an order and grant permission to appeal (but that would not be relief under rule 3.9). The witness statement of the Claimant's solicitor does not contain such material as might lead me to conclude that something new had arisen or that facts had been misstated when I made my original decision. In terms of taking into account an error of my own (if such I thought it was) for the purposes of relief under 3.9 again that would in my judgment be too close to acting as an appellate court from my own decision and would be inconsistent with the principles in Tibbles which bind me.
24. Therefore whilst I have expressed the judgment which I would reach in terms of the correctness of my own original decision should Mr Browne be correct in arguing that I can take that into account under rule 3.9 or 3.1(7), my primary conclusion is that if the Claimant is to challenge the legal basis of my sanctions that will have to be a matter for appeal.

Relief from sanctions

25. I am in the unenviable or perhaps privileged position of, as counsel described it, being in 'the vanguard' of interpreting the new rules, especially, in this case, as to relief from sanctions. I must exercise my judgment absent authority on point under the new rules, against a backdrop not only of the rule changes themselves but the Jackson report and the non-binding but of course relevant guidance as to the views expressed in the Jackson implementation lectures and notably among them the 18^th in that series, to which I referred at the last hearing, and to which I have been referred again in the course of argument.
26. Notwithstanding this court's 'vanguard' position, the question of relief from sanctions nonetheless still engages 'old fashioned' concepts of fairness, access to justice including Art. 6, and requirements for proportionality of response, in addition to adherence to the new overriding objective.
27. The new overriding objective is in marked contrast to the old one in form and, in my judgment, in substance. The court must now, as a part of dealing with cases justly, ensure that cases are dealt with at proportionate cost and so as to ensure compliance with rules, orders and practice directions. In that sense what we now mean by 'dealing with cases justly' has changed, or if it has not changed then at the very least there is a significant shift of emphasis towards treating the wider effectiveness of court management and resources as a part of justice itself. (For which see the quotation below from the 18^th Jackson implementation lecture).
28. It is a helpful illustration in this case to consider that, in order to find time in my diary to list this application for relief within any reasonable time, there being objections from Mr Mitchell's side to a long wait, I needed to vacate a half day in my list which had been pre-allocated to deal with claims by persons affected by asbestos related diseases. There is an expedited list for such claims because life expectancies are often very short. The impact, therefore, of the admitted breaches in this case, was that the claims of those litigants which could have been listed in my diary were not listed, and in their place we have an argument about non-compliance with rules in this defamation claim.
29. I am sure all claims are important to the parties, but the issue here is not the relative importance of the claims (ie this defamation claim versus the mesothelioma claims which were not listed), rather it is the right of other litigants to have a 'fair crack of the whip' where judicial and court resources are very limited, and the right not to be delayed while the courts dispose of matters which ought not to arise in the first place if rules are complied with. I mention this as a concrete example of the impact which breaches in one claim can have on other claims in the system: I do not wish to be misunderstood as saying that evidence of specific detriment to other litigants is necessary in any given case. Breach of rules may I think be assumed to risk impact upon other claims, and the above illustrates one mechanism as to how that occurs where an application for relief is required due to a breach.
30. The Master of the Rolls in the 18^th Jackson implementation lecture, which all professionals in the law should read, stated (and I note that much more of the lecture was quoted before me but I highlight this passage):

"… The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations." (para. 27).

31. I do not apply public lectures as if they were judgments, but I will take note of the policy position stated in the lectures. The task for me is to consider the rules and apply them against that policy backdrop to the facts of the case. Furthermore there are highly persuasive observations in Fred Perry v Brands Plaza Trading Ltd [2012] EWCA Civ 224 (at para 3 of judgment of Jackson LJ) which make similar points as to the willingness of courts to grant relief.

The breaches

32. The breaches in this case were (1) failure to engage in discussion with the Defendant as to budgets and budgetary assumptions per para 4.1 of PD51D and (2) failure to file a budget 7 days before CMC in accordance with para. 4.2 of that practice direction.
33. It is clear that since budget consideration and proper case management are of great significance in achieving the policy objectives of cost control and rule compliance, breaches of these two rules are capable of being serious and of having a serious impact on cost and court time.
34. In this instance there was absolute failure by the Claimant to engage in discussion of budget assumptions when asked and no attempt to apply for extra time or to ask the court informally for relief by email before running into time difficulties.
35. There was from the court's perspective silence from the Claimant, and it was merely the chance happening that this court reviewed the file the day before the hearing which led to the Claimant acting – when chased by me - to file one at the last minute the day before. We had an abortive budgeting exercise and have now had time taken for relief from sanctions at a separate hearing when the Claimant was not (at the last hearing) in a position to seek relief by producing evidence to support such relief. The breaches therefore, whilst simple to describe, are serious ones given the new emphasis on compliance.
36. It is perhaps all the more troubling that at the last hearing there seemed to be confusion on the Claimant's side as to whether and if so which cost budgeting regime applied to this case, as appears from the following exchange in submissions on the previous occasion:

"Counsel: Well, on the part of my instructions there was some concern as to the fact that we fall post the cost budgeting pilot scheme in defamation which ended in September of last year.

Master: No, it did not, with respect. It was extended until 31^st March 2013 by paragraph 1.1(1) of the Practice Direction. It was in force up to the date immediately prior to the coming into force of the Jackson costs budgeting provision. So that is just wrong."

The evidence in support of relief

37. Mr Atkins the solicitor for Mr Mitchell filed a statement which explains that this case was initially listed on too short notice, and that is correct. The matter had been listed for Monday 10th June but it was not until 7^th June that either party became aware of the date. The Defendants immediately emailed me to draw my attention to that fact, copying in the Claimants, and I vacated the hearing and re-listed it on 18^th June to enable budgeting and so forth to be done. It would have been impossible for any party to deal with budgeting and file budgets 7 days before the CMC where only 3 days' notice of the CMC was given (technically 3 days is the minimum still required by the rules, but this does not sit well with the cost budgeting rules, and the Rules Committee may wish to address that conflict).
38. The Defendants made use of external cost lawyers and produced and filed their budget on 11 June in compliance with the rules, and sought to engage the Claimant's solicitors in discussion of budget assumptions. The Claimant's solicitors indicated to the Defendants that they would be unable to file on time (but did not inform the court of this) and proposed the 14^th June for exchange of budgets with the Defendants, though ultimately they did not do so even by that later date.
39. Mr Atkins indicates that his firm is a small one, with 2 London partners and he contrasts this with the Defendant which is described as being a national newspaper with an established firm acting for it. He indicates that the Practice Direction 51D indicates expressly that the aim of the cost budgeting process is to ensure equality of arms between the parties. This was also something counsel referred me to.
40. Two of Mr Atkins' three trainee solicitors are on maternity leave, and the senior associate solicitor recently left the firm – and it was that member of staff who used to deal with cost budgeting. Further the firm is engaged in work on other litigation notably the Mobile Telephone Voicemail Interception Litigation (MTVIL) and, as he put it "at certain periods this can place huge pressure upon resources". The assistant on the case was engaged on the MTVIL litigation and the evidence indicates that for the MTVIL claims it was a case of 'all hands on deck' in the firm. The thrust is that they were stretched very thin in terms of resources.
41. Significant work, I was told, had to be done for two hearings on 11 June namely one at the Senior Courts Costs Office and one before Vos J. There was significant prior preparation for those. Then a cost conference on 13 June in the MTVIL litigation. On top of all that there was the work on a Reply to Defence in this claim which I was told was taking time and work as one would expect.
42. In terms of the effort made to produce the budget I was told that on 7 June various questions were sent to counsel for the Claimant to obtain information needed for the drafting of the budget. Work started on the budget on 10 June and also chased counsel's clerk as to the answers to the questions about fees. Counsel's chambers responded on Thursday 13^th but imposed a stipulation that counsel would want to approve the draft budget once produced. A draft was sent to chambers on Friday 14 June and a further draft was sent to his chambers that evening with suggested amendments to counsel's fees in the budget.
43. I interject at this point to note that none of the above difficulties were notified to the court or any relief sought. On Monday 17^th I emailed the parties to ask about the absence of the Claimant's budget on the file, and the remainder of the history is set out in my previous judgment. The budget was eventually filed at around 3pm on Monday 17^th June before the hearing on 18^th June.

The law and submissions as to relief

44. The new form of rule 3.9 is as follows:

"3.9(1) On an application for relief from any sanction imposed for 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."

45. Absent appellate authority since the introduction of the new wording of the rule I was taken by Mr Browne to Ryder Plc v Beever [2012] EWCA Civ 1737. In that case the court considered the expression "administration of justice" in the context of the then express factors set out in the previous version of rule 3.9. Dame Janet Smith stated:

"I do not suggest that the loss of court time is not a relevant factor but it does seem to me that 'the interests of the administration of justice' are concerned with wider and potentially more important issues than simply the loss of court time. I would not wish to propose a list of factors which might be relevant to the interests of the administration of justice but I do suggest that they might well include such matters as the right of access to the courts and the importance of doing justice between the parties. It will be in the interests of the administration of justice that a party does not lose his right of access to the courts without good reason."

46. It was argued that the last hearing was adjourned with costs thrown away, that cost budgeting could be dealt with on the 25^th July (ie, the occasion of the relief application), that this was an early stage in the claim and moreover there was no prejudice to the Defendant caused by these defaults. Rather the Defendant would get a windfall in the form of cost protection.
47. As to the balance to be struck under the new rule, which enjoins me to consider all the circumstances of the case, the point was made that the quotation from Ryder (supra) was from a case in which Jackson LJ's consideration in Fred Perry (supra) was before the court, and hence although it is an authority pre-dating the Jackson reforms it should be considered as relevant.
48. Practice Direction 51D expressly states that its objective was to manage costs to ensure they are proportionate to the value of the claim, the reputational issues at stake and so that the parties are on an equal footing. Imposing the sanction which I did, it was said, would be to depart from the objective stated on the face of the rules. Moreover by adjourning with costs thrown away I had imposed a double penalty – the costs and the budget sanction – or even perhaps a triple penalty in that it was to be expected that the Claimant would be likely to have to pay the costs of the application for relief from sanctions if granted. Such was not proportionate. It was inappropriate in the circumstances of the case.
49. Mr Browne argued that the rules, post Jackson, are not about 'no tolerance' but rather about 'low tolerance'. The new regime had to be administered justly and that the sanction imposed was far too high.
50. I raised of my own motion (though time pressure of course ran through the evidence of the Claimant's solicitor as well) the fact that the Claimant and Defendant had had 4 days in which to prepare budgets prior to the 7 day deadline, and some 11 days notice of the CMC itself. Two of those 4 days in which to prepare the budget were weekend days.
51. Whilst not formally defective notice, since the rules do not provide a minimum time to prepare a budget, I was concerned that I give proper consideration as to whether the modest time provided to produce the budget meant that it would be unfair to hold the claimant to the sanction which I imposed.
52. The Defendants in relation to the latter point reminded me that they had complied with the rules in time, and that this is a Defamation claim where the budgeting rules have been in force for a long time, and are well known to specialist lawyers. Solicitors are obliged to keep clients informed as to costs, the rules are therefore not very onerous as to the work to be done to produce a budget. It was argued that the very fact that they completed the task by using cost lawyers indicated that the time allowed was adequate. In truth it was said that the Claimant's lawyers had not been fully aware of the rules or it had tried to conduct the claim without the proper staff resources. The excuses set out in the evidence did not justify relief. There was no evidence of hardship to Mr Mitchell (represented under a CFA) as opposed, perhaps to hardship for his solicitors arising from what was their own default.

Decision

53. The explanations put forward by the Claimant's solicitors are not unusual ones. Pressure of work, a small firm, unexpected delays with counsel and so on. These things happen, and I have no doubt they happened here. However even before the advent of the new rules the failure of solicitors was generally not treated as in itself a good excuse and I am afraid that however much I sympathise with the Claimant's solicitors, such explanations carry even less weight in the post Jackson environment.
54. I do not consider that the sanction imposed was a double penalty: the Claimant was not in a position to deal with issues of relief properly last time and the matter was adjourned; it is no surprise that costs were to be paid by the Claimant for that adjournment. The sanction for the breaches (of which there were two) was the limitation which I imposed as to the budget.
55. The explanations put forward are not adequate as excuses for breach. However leaving that aside, I am not bound to dismiss an application for relief merely due to a lack of good excuse.
56. There is no evidence before me of particular prejudice to Mr Mitchell arising from my order: it would be for him to demonstrate that and it would be wrong of me to make assumptions about the wording of his CFA agreement with his solicitors which may or may not mean that my sanction affects him financially or in terms of legal representation. Even if it did affect him financially and as to representation, there are many claimants who manage without lawyers and it could not be said that he would be denied access to a court more than is the case for others if they have to represent themselves. Art 6 rights are engaged but a proportionate sanction can be a legitimate interference with Art 6 and in this instance Mr Mitchell is not driven from the court.
57. Equally I think it is obvious that the sanction is something of a windfall for the Defendants, but that is often the way with sanctions.
58. This is a claim about reputation and about freedom of the press to report news stories. It is important to Mr Mitchell and it is important to the Defendants too. Cases are usually important to the parties but if such considerations weighed too heavily one would be unable to implement the objectives of the new rules. One would be unable to prevent some claims from taking unfair amounts of judicial resources away from other claims at the very moment when it is common knowledge that budgetary constraints may lead to fewer judges in the courts, and to reduced non-judicial resources to operate those courts.
59. Judicial time is thinly spread, and the emphasis must, if I understand the Jackson reforms correctly, be upon allocating a fair share of time to all as far as possible and requiring strict compliance with rules and orders even if that means that justice can be done in the majority of cases but not all. Per the Master of the Rolls in the 18^th Lecture quoted above:

"The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now."

60. I have given close consideration to the amount of time which the Claimant had to produce his budget. Was there procedural unfairness? On the face of it 4 days is short and even shorter when one considers that two days were weekend days. But having considered this carefully, because it was a point which troubled me, the view I have taken is that the parties were well aware that this was a case for which budgeting would be required from the start and that the mere fact that a date is set for a CMC is not supposed to be the starting gun for proper consideration of budgeting.
61. Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC even at relatively short notice if proper planning has been done. The very fact that the Defendants, using cost lawyers, were well able to deal with this in the time allotted highlights that there is no question of the time being plainly too short or unfairly so.
62. I have also given close consideration as to the stated objective of PD 51D and notably the concept of equality of arms referred to there but my conclusion is that the objective stated there relates to decisions made as part of cost budgeting, rather than sanctions for failure to engage with the process at all. Moreover the new overriding objective and the identical wording in rule 3.9 highlight the emphasis to be placed, now, on rule compliance and one has to give effect to that.
63. I am in all the circumstances not persuaded that it would be just within the meaning of the rules to grant relief in this case and I therefore dismiss the application.
64. I will hear any consequential applications on a date to be set or if uncontroversial I will deal with matters by email.
65. The stricter approach under the Jackson reforms has been central to this judgment. It would have been far more likely that prior to 1/4/13 I would have granted relief on terms, and in view of the absence of authority on precisely how strict the courts should be and in what circumstances, I shall grant permission to appeal to the Claimant of my own motion, under CPR 52.3(6)(b), on the basis that the severe nature of the sanction which I have imposed in giving effect to the Jackson reforms to the overriding objective and to r.3.9 in its new form here are of necessity not backed by specific authority on point, and the risk of injustice if I were adopting too strict an approach is such as to provide 'some other compelling reason' for an appeal to be heard. It will be for the appeal court to determine whether such a strict approach is appropriate.

MASTER VICTORIA MCCLOUD
In draft 29 July 2013
Handed down in final form 1 August 2013