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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/10/2013

Mr Justice Simon:

Introduction

1. On 28 March 2013 a claim form was issued by Leigh Day & Co on behalf of 13 Claimants against the 1st Defendant ('ABG') and the 2nd Defendant ('NMGML').

The Claimants claim in their own capacity in respect of injuries personally sustained and/or as the administrators of the estates of deceased individuals and/or as dependants of deceased individuals. The claims brought by the Claimants all pertain to injuries or deaths that occurred in or around the North Mara gold mine in Tanzania since 2010 as a result of the use of unlawful and/or excessive force by private security agents and/or police at the mine. The mine is operated under licence held by [NMGML]. At all material times, [NMGML] and the mine were under the control of [ABG]. The injuries and/or death were caused by the:

(a) acts and/or omissions of the Defendants; and/or

(b) acts and/or omissions of private security agents and/or police for which the Defendants are vicariously liable, and/or in whose acts or omissions the Defendants conspired; and

for which the Defendants are liable in negligence, trespass to the person, conspiracy and/or occupiers and/or equivalent wrongs in law in circumstances in which the law of another country is held to apply to the determination of the substantive issues between the parties.

The Claimants have suffered physical injury and/or consequential losses (including the cost of voluntary nursing care), for which they claim damages and interest pursuant to s.35A of the Senior Court Act 1981.

2. Under CPR 7.5 the claim form had to be served by midnight on the calendar day four months after the date of its issue. This would have been midnight on 29 July 2013. The claim form was in fact served before that date, on 26 July, with the 9th Claimant being deleted as a party. The particulars of claim, however, were not served with the claim form; they were hand delivered to the Defendants' solicitors ('Quinn Emanuel') on 30 July, 16 hours after midnight on 29 July.

The first issue

3. On 6 August the Claimants issued an application seeking a declaration that the particulars of claim was served in time. This raises an issue as to the proper application of the Civil Procedure Rules.
4. CPR 7.4 deals with particulars of claim and provides by CPR 7.4(2):

Particulars of claim must be served on the defendant no later than the latest time for serving the claim form.

(Rule 7.5 sets out the latest time for serving the claim form)

5. CPR Part 7.5(1) provides

Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

6. Where the service is by delivery of the particulars of claim, the step required is 'by delivering to or leaving the documents at the relevant place'. This is what occurred.
7. On the face of it the requirement is clear: the document should be served before midnight four months after the claim form is issued.
8. This view of the matter is supported by the Practice Direction to CPR Part 16 (statements of case), PD 16 §3.2,

Where the claimant does not include the particulars of claim in the claim form, particulars of claim may be served separately:

...

(2) within 14 days after the service of the claim form provided that the service of the particulars of claim is not later than 4 months from the date of issue of the claim form ...

see also §4.2.1 of the Queen's Bench Guide, which is to similar effect.

9. Mr Hermer QC (for the Claimants) submits that this analysis is wrong; and that one needs to look to CPR Part 6.14 to see when a Claim form is served.
10. CPR Part 6 deals with Service of Documents; and Part 6.14 provides

A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1)

11. This does not in my view have the effect of extending the time in which the Claim form must be served. It is a provision which gives certainty as to when the claim form is deemed to be served: for example, if the claim form is served after business hours on the last date for service, it will be deemed to be served two business days later.
12. The editorial commentary at §6.14.3 of the White Book makes this clear.

It is important to notice that the question whether there has been compliance with the time limit fixed by r.7.5 for service of a claim form within the jurisdiction (or in Scotland and Northern Ireland) is determined, not by inquiring as to whether the deemed day for service fell within the period, or whether personal service was effected within it (as was the case before October 1, 2008), but by asking whether the 'step required' was 'completed' within the period. Consequently, the problems encountered under the former rule, and dealt with by the Court of Appeal in cases such as Godwin v Swindon BC [2001] EWCA Civ 1478; [2002] 1 WLR 997, CA, and Anderton v Clwyd CC (No.2) [2002] 1 WLR 3174, CA, are avoided.

13. CPR Part 6.14 identifies the moment from which subsequent steps in litigation are calculated to take place: for example the time for filing an acknowledgement of service under CPR Part 10.3. This construction of the Rules is supported by the view expressed by Professor Zuckerman in Volume 28 Issue 1 of the Civil Justice Quarterly.
14. It follows that the particulars of claim were not served within the time specified for service and this part of the Claimants' application of 6 August must be refused.

The Second Issue

15. As an alternative to seeking a declaration that the particulars of claim were served in time, the Claimants seek alternative relief: an order for relief against sanctions, under CPR 3.1(2)(a) and 3.9, for non-compliance with CPR 7.4(2) and that time for service of the particulars of claim be extended for 16 hours or, if necessary, 21 days from the hearing of the application. The application is opposed by the Defendants who submit that the claim should be struck out.
16. To determine this issue it is necessary to consider the history of the dispute between the parties before and after 30 July 2013.

The history of the litigation up to 30 July 2013

17. The incidents which give rise to the claim occurred on: 2 July 2010 (5th Claimant), 16 May 2011 (1st-4th, 6th and 7th Claimants), 14 July 2011 (8th Claimant), 12 November 2011 (12th Claimant), 28 November 2011 (10th and 11th Claimant) and 7 May (13th Claimant). The 16 May 2011 incident involved a number of intruders at the mine and fatalities as a result of events which are in issue. The 28 November 2011 incident resulted in severe injury to the two Claimants as a result of a rock fall, whose cause is also in issue.
18. On 12 January 2012 Mr Meeran, the partner of Leigh Day having conduct of the claims, wrote a letter of claim addressed to the CEO of ABG, with a copy to its Canadian parent company, Barrick Gold Corporation ('BGC'). He also wrote a separate letter to BGC in relation to 8 claims which arose before 2010, in respect of which no claim was made against ABG. It is unnecessary to say anything further about these pre-2010 claims. The letter of claim addressed to ABG (17 pages) set out the basis on which ABG was said to be liable to the Claimants. In broad terms, it was said that ABG 'controlled the operations' of NMGML, particularly in relation to security at the mine, in such a way as to give rise to a duty of care to those who entered the mine. The claims were divided into four categories: (a) death or injury of those who had entered the mine to collect 'gold-laden waste rock' and were shot by the police or NMGML's security staff, (b) death or injury to bystanders near the Mine's operational area, (c) assault of detainees, 'including sexual assault and rape by police and/or security guards' within the operational area of the mine, and (d) death caused by falling into an unfenced open pit.
19. At this stage Leigh Day represented 21 individuals, but the letter indicated that it expected to receive 'instructions from dozens of additional Claimants over the coming months'. The letter also set out the various causes of action which would be relied on: negligence, trespass to the person and liability as occupiers of the mine. On page 12 of the letter, there was a request for disclosure of 13 categories of documents: these included various documents relating to the security policies relating to the mine (a-c), incident reports (f), the Memoranda of Understanding ('MOUs') between NMGML and the Tanzanian police (i), and photographs and CCTV recordings on each of the dates when it was alleged the injuries or deaths had occurred (j). Appendix 1 was a schedule of Claimants, the date of the relevant incident and a summary of what was said to have occurred.
20. On 6 March Freshfields Bruckhaus Deringer ('Freshfields'), then representing the Defendants, replied asking for further information, including the precise time of the incidents and the quantum of the claim, and also requesting the medical reports which had been promised in Leigh Day's 12 January letter. Further correspondence then followed between the solicitors.
21. The incident giving rise to the 13th Claimant's claim occurred on 7 May 2012.
22. In a letter dated 11 July Freshfields responded to the letter of claim. The response (50 pages) contradicted many, if not most, of the factual assertions underlying Leigh Day's 12 January letter of claim, and set out closely reasoned legal arguments as to why the claims would not succeed. It also raised a general point of concern that a number of the claims appeared to have been fabricated or inaccurately embellished, and noted that virtually none of the claims was supported by contemporaneous evidence, including medical evidence. ABG's approach to settlement was set out clearly in the letter.

ABG will not allow itself, through a group action instigated under questionable circumstances, to be drawn into compensating individuals who recklessly and illegally trespassed on the mine, stole NMGML property and, in a number of cases, violently attacked mine personnel as well as officers of the Tanzanian Police Force.

23. The letter also set out the terms of the MOUs between NMGML and the Tanzanian police, and how they operated. Significantly, in terms of the later requests for disclosure, the letter described CCTV cameras operated in 'high-risk areas'. On the subject of Leigh Day's request for documents, Freshfields pointed out that the purpose of early disclosure was to provide for the exchange of relevant information and that Leigh Day's requests were beyond the scope of the Protocol. However, subject to certain undertakings, ABG was prepared to disclose the MOUs, the operational plans with the Tanzanian police and the security policies.
24. On 24 August Leigh Day pursued their request for CCTV images of the incidents. Freshfields replied by saying that the continuing disclosure requests were likely to result in the incurring of disproportionate time and cost to its client. It seems to me that this was a reasonable response, at least until Leigh Day had responded to Freshfield's letter of 11 July.
25. On 21 December 2012 Leigh Day provided that response. In this letter (25 pages) 7 new claimants were added (of which 4 are Claimants named in the claim form) and 18 of the original Claimants, were no longer said to be advancing claims. Leigh Day set out its contentions as to why ABG was liable for the losses caused by death and injury at the mine to Leigh Day's clients. The letter concluded by summarising complaints about failure to provide documents. Annexe A set out a list of specific disclosure requests, and Annexe C a list of the 7 new Claimants. Annexe A was a request for CCTV footage which had been referred to in Freshfield's 11 July letter. In a letter of 8 January 2013 Leigh Day confined their request for CCTV recordings to the dates of incidents giving rise to claims, including 9-16 May 2011.
26. On 18 January Freshfields pointed out that it had still not received the assurances it had asked for as a precondition of making the pre-action disclosure offered in the letter of 11 July, and repeated its own request for pre-action disclosure, particularly the medical records.
27. On 15 February 2013, Freshfields sent a substantive response (16 pages) to Leigh Day's letter of 21 December 2012. This letter repeated many of the arguments on the legal issues and asserted that Leigh Day's account of the events of 9-16 May 2011 was inaccurate. At Appendix A the letter set out a list of the 77 documents which it was disclosing 'in line with its Pre-Action Protocol obligations'.
28. On 28 March 2013 Leigh Day sent a Notice of Funding to Freshfields, which included a schedule of Claimants on Conditional Fee Agreements. The claim form was issued on 28 March 2013 so as to take advantage of the costs regime that came to an end on 1 April 2013, or at least to avoid what may have been perceived as a less favourable costs regime coming into force from 1 April. The claim against NMGML had not been foreshadowed in any of the pre-action correspondence.
29. As already noted the issue of the claim form began the period of 4 months within which the particulars of claim had to be served, absent the agreement of the Defendants or an order of the Court.
30. Following the issue of the claim form there was further correspondence about disclosure, with Leigh Day pressing for further material, and Freshfields contending that it was not under an obligation to make further pre-action disclosure once proceedings had been issued and that, in any event, there had been sufficient disclosure for Leigh Day to plead the Claimants' case.
31. On 3 June Leigh Day wrote pointing out that Freshfields plainly had material documentation which had already been requested.

It is obviously sensible for you to supply us with documents in your possession (including for example the video footage that appears to exist) and which you have considered in refuting our clients' allegations. Such evidence might, for instance, demonstrate the correctness of your clients' claims or some of them, or their unfoundedness (sic).

32. Under cover of a letter of 12 June Freshfields offered to disclose security incident reports, ammunition discharge reports and requests for the Tanzanian police to enter the mine, in relation to the incidents on 2 July 2010, 16 May 2011, 14 July 2011 and 28 November 2011. These were sent under cover of a letter of 19 June.
33. By a letter of the same date Leigh Day pressed again for CCTV records for the relevant days and threatened to apply to Court if these were not disclosed.
34. On 3 July Quinn Emanuel wrote to Leigh Day saying that it had been instructed in place of Freshfields; and on 5 July it undertook to respond to the substance of Leigh Day's request for further disclosure by 17 July.
35. It is clear that Leigh Day was aware that the time for service of the claim form and particulars of claim were approaching. On 9 July Leigh Day agreed to wait until 17 July for a response to the disclosure request on the basis that Quinn Emanuel would agree to an extension of time for the service of the particulars of claim of 28 days after the disclosure was given or 14 days after the determination of an application for disclosure. No such agreement was forthcoming.
36. In its letter of 11 July, Quinn Emanuel wrote to say that it had now reviewed the extensive correspondence, which included the various requests for further pre-action disclosure. The letter enclosed CDs of 5 hours of CCTV footage recording the incidents on 16 May and 14 July 2011. The letter also offered to provide an aerial image of the mine to assist in viewing the CCTV footage. The CCTV recordings were received by Leigh Day on 12 July: just over two weeks before the particulars of claim had to be served.
37. On 17 July Quinn Emanuel wrote that it was still taking instructions on other disclosure requests, informed Leigh Day that it was authorised to accept service on the Defendants' behalf and made proposals for the case management of the claims. On the latter point, Quinn Emanuel pointed out that although there was a single claim form, the claims were in fact different. This letter was followed by a further letter from Quinn Emanuel, dated 23 July, which concluded:

In the light of ... the fact that: (a) your clients are now clearly in a position to plead their claims (if, which is not accepted, they were not already able to do so prior to the provision of the most recent documentation); (b) there is now no impediment to your clients serving their claim form and getting on with these proceedings; and (c) there is no common ground in terms of settlement, our clients are not prepared to provide any further disclosure pending the service of your clients' claim form and particulars of claim, which as you are aware, are required to be served with an appropriate statement of truth for each of the Claimants

38. As already noted the claim form was served on 26 July.
39. It is clear from his evidence that Mr Meeran had made a mistake about the time by which the particulars of claim had to be served. In the absence of an extension of time, he believed Leigh Day had 14 days in which to serve them.
40. There was a telephone conversation on 29 July at about 5.30 pm between Mr Meeran and Ms Prevezer QC (one of the partners acting for the Defendants at Quinn Emanuel). It is common ground that nothing was said which could have led Leigh Day to think that Quinn Emanuel agreed to grant them an extension of time in which to serve the particulars of claim.

The history of the litigation from 30 July to date

41. At about 4.00 pm on 30 July Leigh Day purported to serve the particulars of claim.
42. There was a subsequent exchange between the parties about whether the document had been served in time; and on 6 August Leigh Day issued the applications to which I have already referred.
43. It is convenient at this stage to consider the nature of the particulars of claim which had been delivered to Quinn Emanuel on 30 July.
44. The basic requirements of a particulars of claim are set in CPR 16.4(1)(a) and have been described in the judgment of Moore-Bick LJ in Credit Suisse AG v. Arabian Aircraft & Equipment Leasing Co. EC and others [2013] EWCA Civ 1169 at [17].

Particulars of claim are intended to define the claim being made. They are a formal document prepared for the purposes of legal proceedings and can be expected to identify with care and precision the case the claimant is putting forward. They must set out the essential allegations of fact on which the claimant relies and which he will seek to prove at trial, but they should also state the nature of the case that is to be made in order to inform the defendant and the court of the basis on which it is said that the facts give rise to the remedy being claimed.

45. The particulars of claim as delivered on behalf of the Claimants are highly unsatisfactory in a number of respects, although the contingent nature of the document was acknowledged in §§1 and 16 of the document.

1. These Particulars of Claim are pleaded in skeletal form only. They are served to ensure compliance with CPR 7.4 and in the light of the Defendants (sic) refusal to consent to an extension of time. In these circumstances the Claimants intend to serve an Amended Particulars of Claim in substitution for this document and it is accordingly averred that it would be disproportionate for Defences to be filed in the interim.

...

16. As set out in paragraph 1 above, a fully particularised claim will be served in due course. Such particulars will be pleaded once adequate disclosure has been made and/or once the Claimants have had an opportunity to review and provide instructions to their UK lawyers on recent disclosure made by [the Defendants] including video footage of incidents on 16 May and 14 July, which was disclosed on 11 July 2013. Insofar as necessary to do so, the Claimants rely further on facts and matters set out in correspondence dated 12 January 2012 and 21 December 2012.

46. Under the heading 'Parties', §§2-5 set out the Claimants' case on the relationship between Defendants; and at §§6-7 contained the core allegations.

6. At all material times, ABG/NMGML employed and/or contracted mine security personnel and used Tanzanian police as a common adjunct to and integral part of the Mine's security, and exercised and/or was able to exercise control and/or significant influence over the conduct of the same.

7. The Claimants are persons who have suffered injuries at the mine between July 2010 and May 2012 or they claim for and on behalf of the dependents and/or the estates of persons who have been killed at the mine between those dates. A Schedule of claimants, the injuries to which the claims relate and the dates of the same [are] attached as 'Schedule A'. A Schedule of claimants, the fatalities to which the claims related and the dates of the same is attached as 'Schedule B'.

47. The Defendants make a number of justifiable complaints about this plea. First, the brevity of the core allegation was more appropriate to the endorsement to a claim form. Secondly, it grouped together without any Group Litigation Order 12 different claims, some of which have common features and some of which do not. Thus the claim by the 5th Claimant is founded on an allegation that he was shot with a rubber bullet on 2 July 2010 by mine security personnel and suffered a broken collar bone; the claim by the 12th Claimant is founded on an allegation that he was shot by the police in the right ankle on 12 November 2011; and the dependent claim of the 2nd Claimant is founded on an allegation that the deceased was shot dead by the police on 16 May 2011. Thirdly, Schedules A and B are materially the same documents as had been sent in correspondence. For example the brief entry against the name of the 5th Claimant on Schedule A is the same as the brief entry on Appendix 1 to the 12 January 2012 letter of claim. The detail of this claim had not progressed at all. Similarly, in relation to the dependant claim of the 2nd Claimant, the only difference between the entry on Schedule B of the particulars of claim and Appendix 1 of the letter of claim was the identification of the names of the dependants. Fourthly, there was no calculation of loss. This point was dealt with in §20 of the particulars of claim.

Schedules of loss will be supplied together with or following the provision of further particulars, and in accordance with directions given by the Court.

48. At §§8-12, the particulars of claim described the basis for the conclusion in §13:

In the light of the above, [each Defendant] owed a duty to [Artisanal and Small Scale Miners] and people in the vicinity of the mine, including the Claimants' deceased relatives, to take reasonable steps:

1. to avoid such individuals suffering harm as a result of the unreasonable and/or excessive use of force by police and/or mine security personnel; and

2. to ensure that adequate and competent medical treatment was administered, whether on the mine or elsewhere, for injuries sustained by such persons.

49. As Mr Gibson was entitled to observe, this plea is framed in a way that is unsustainably broad, insufficiently focussed on the individual claims and lacks any causative link with the pleading which precedes it.
50. The terms of §14 are similarly broad.

The fatalities and injuries suffered by the Claimants and those whom they represent were caused by breaches of duties owed to the victim by reason of [the Defendants'] ownership and/or occupation and/or operation of the mine site specifically in relation to the provision of security and/or in common law negligence and/or conspiracy and/or trespass to the person and/or common law design and/or vicarious liability for the acts.

51. There appears to be no distinction drawn between these different bases of liability; and some of the specified breaches of obligation relied on are inadequately particularised:

14.4 failing to take steps that were reasonable available that would have avoided situations in which police and/or mine security personnel used unreasonable and/or excessive force against local people and the risks associated therewith;.

...

14.10 failing to provide adequate medical treatment and/or make adequate arrangements for transportation of injured persons to locations where such treatment could be administered; and/or

14.11 expressly or impliedly endorsing and/or instigating and/or facilitating and/or directing the conduct of police and mine security personnel in circumstances where the police and/or mine security personnel used unreasonable and/or excessive force against the Claimants or the deceased in relation to which the Claimants claim.

52. In §15 the Claimants plead,

Other facts and events occurring from 2006 to 2013 are relied upon as similar fact evidence in support of the Claimants' contention that the harm sustained by the Claimant and/or deceased in relation to which they claim was part of an on-going pattern of conduct in which [Artisanal and Small Scale Miners] or persons in the vicinity of the Mine were injured and/or killed by police and/or mine security personnel as a result of deficiencies in the security arrangements, policies, practices and procedures of the Mine, for which [the Defendants] are responsible.

This paragraph is both inadequately particularised and impossible to respond to, as was recognised in §16.

53. In §17 there is a plea that the applicable law was Tanzanian law, save to the extent that it was contrary to public policy, and an averment that the Tanzanian law is the same as the law of England and Wales.
54. At §§21-22 there are claims for aggravated and exemplary damages. The claim for the former relies (in part) on the Defendants,

... taking steps to frustrate claims being brought in the UK, following the incidents in question, as well as [their] conduct of this litigation including [their] failure to provide documents and failure to provide any apology.

It is sufficient to observe that the jurisprudential basis for this plea is not self-evident.

55. Finally there is a deficiency in the statement of truth signed by Mr Meeran.
56. In the light of these egregious deficiencies in pleading there can be no question of granting relief against sanctions in relation to the currently framed particulars of claim.
57. In the normal course one would expect the deficiencies in the pleading (recognised as they were at the time) to have been the subject of urgent revision and the provision of a draft amendment. However this is not what has happened.
58. Mr Meeran has set out in evidence what he has done since issuing the applications on 6 August.
59. In §2 of his fourth witness statement (dated 3 October 2013) he gives evidence of the steps he has taken since 12 July when he received the CCTV tapes. He explains that the CCTV footage for 16 May 2011 comprises 5 hours of recordings from 3 cameras at different locations; and that the CCTV footage for 14 July 2011 comprises 8 minutes of recording from one camera. He describes the cross-referencing of the images to the witness accounts, reports of the incidents and maps as time-consuming and complicated, and states that detailed preliminary background work had to be carried out before he could instruct an expert. In the event, he instructed Gary White, an expert on 'Policing and Policing Disorder' on 16 August.
60. Mr White produced a report on 2 October which, although tentative in the way he expresses himself, (i) indicates his concerns about the lack of organisation and planning by the police and mine security when dealing with the crowd on 16 May 2011, and concerns as to why a 'special security operation' was carried out, (ii) notes the lack of any detailed explanation as to why shots were fired on 16 May in view of the lack of any apparent threat to the lives of the police officers or mine employees, and (iii) expresses the view that the level of force which was used did not appear to conform with the Defendants' policies on the use of force. His provisional conclusion is set out at §43,

My initial review gives rise to real and substantial concerns as to the approach taken by the mine authorities and police to the situation on 16 May 2011 and the appropriateness of force used.

61. The Claimants have also produced a report of Paul Warner of 'Both Sides Now Consulting Inc', whose expertise is in advising mining companies on improving 'their capacity to engage with their neighbouring communities'. He viewed the relevant corporate policies and the MOUs between NMGML and the Tanzanian police; and came to the unexceptional (although not necessarily expert) conclusion that policies devised by mining companies are only as effective as they are implemented in practice at a local level.
62. I should add, since it is part of the history of the litigation, that on 21 August 2013, the Claimants appeared on a without notice application and were granted an anti-suit injunction by Turner J. The order prohibited the Defendants from pursuing civil proceedings in the High Court of Tanzania. These proceedings had been commenced on 11 July against 8 of the Claimants, seeking,

A declaratory decree that, as a matter of Tanzanian law, a private person, and in particular [NMGML], cannot be held liable for the actions and/or omissions of the Tanzanian Police Force acting in discharge of its duties whose code of conduct is regulated by the Police Force and Auxiliary Services Act, Cap.322.

63. There was to be argument at this hearing as to whether the order of Turner J should be continued. However the parties agreed that this should wait until the judgment on the 6 August applications.

The approach to the application for relief against sanctions

64. The Claimants' application is made under CPR Part 3.1(2)(a).

Except where these Rules provide otherwise, the court may,

(a) extend or shorten the time for compliance with any rule ... (even if than application and extension is made after the time for compliance has expired);

65. An application for relief from sanctions and/or an extension of time under CPR 3.1(2)(a), falls to be considered by reference to CPR 3.9. As from 1 April 2013, this provides that:

(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.

66. Mr Gibson submits that the Court's approach to applications for extensions of time has changed since 1 April 2013, and that this changed view is reflected in a summary in a lecture on the Implementation Programme given by Lord Dyson MR on 22 March 2013.

27. 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. Those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds. But more importantly they serve the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the Court enables them to do so.

67. The intent of, and reason for, the changed rules was identified by Lewison and Jackson LJJ in Fred Perry (Holdings) Ltd. v. Brands Plaza Trading [2012] EWCA Civ 224. At [15] of this judgment, Lewison LJ quoted §6.5 of the Jackson report:

… 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 on the civil justice system. The balance therefore needs to be redressed.

At [3] and [4] of his judgment Jackson LJ stated,

[3] ... There is a concern that relief against sanctions is being granted too readily at the present time. Such a culture of delay and non-compliance is injurious to the civil justice system and to litigants generally. The Rule Committee has recently approved a proposal that the present rule 3.9(1) be deleted and the [the new version of rule 3.9] be substituted:

[4] It is currently anticipated that this revised rule will come into force on 1 April 2013. After that date litigants who substantially disregard court orders or the requirements of the Civil Procedure Rules will receive significantly less indulgence than hitherto.

68. I doubt whether, in the usual case, the new words of CPR 3.9 require any further elaboration or refinement. However, some of the criteria in the old version of the rule may be relevant to the exercise of the Court's discretion, although they should plainly not be applied in a formulaic way: see the observations of Andrew Smith J in Raayan Al Iraq Ltd and others v. Trans Victory Marine Inc and others [2013] EWHC 2696 (Comm) at [16].

Conclusion

69. I have taken into account the following matters.
70. First, it may be necessary to form an overall view of the merits when considering the issue of proportionality. The Defendants submit that any money award is likely to be modest, and that there are formidable difficulties in the Claimants' case in attaching liability to the Defendants for the actions of the Tanzanian police. Some of these difficulties are summarised in §§43 and 47 of their skeleton argument for the hearing. However, the difficulty in forming a comprehensive view of the merits at this comparatively early stage in the litigation (before pleading) militates against giving weight to this factor either way.
71. Secondly, although the extension which is sought might seem to be for a very short period, 16 hours, as I have already made clear, the reality is that the Claimants' application is for a considerably longer period, until after the hearing of this application. This is because not only are the present Particulars of Claim, to adopt Mr Gibson's phrase, 'inadequate, inchoate and unhelpful,' for the reasons I have given, it is an inappropriate pleading of what are individual claims. Again, using Mr Gibson's phrase, the pleading adopts the approach of a public enquiry as to what happened at the mine.
72. Thirdly, Mr Meeran was plainly at fault in not being aware of the time limit for serving particulars of claim, and in being diverted by his requests for pre-action disclosure from producing the necessary pleading timeously.
73. Fourthly, I reject any implicit criticism of the conduct of the Defendants' solicitors. There was a protracted exchange of correspondence in which Freshfields and Quinn Emanuel fully engaged with the matters in issue. There were disputes about the ambit of pre-action disclosure, but most of these were sorted out, as one would expect by experienced solicitors on each side. By 12 June 2013, ABG had provided over 1,200 pages of documents at a cost of more than 200 hours of fee-earners time. There may be some truth in the Defendants' argument that part of the reason for the requests for pre-action and post-issue disclosure was for Leigh Day to test whether their clients were telling the truth. In any event, if there had been serious grounds for complaint there could and should have been an application to Court.
74. Fifthly, although the Claimants may have thought that they could not plead the claim properly without sight of the CCTV recordings (and expert advice as to their significance), this has proved a delusion. The recordings are only relevant to 6 out of the 12 claims; and the expert report of Mr White does not appear significantly to advance the cases of the 6 Claimants to whom the recordings may be relevant.
75. Sixthly, the Claimants have put themselves at a disadvantage in still not being in a position to put before the Court an appropriately drafted particulars of claim. Mr Hermer's submission that a '57-page working draft' pleading had been prepared which 'could be finalised in short order' was not a submission that was open to him in the light of the way the case had proceeded up to the end of the first day of argument. Although I accept that, having served its 'skeletal' pleading, the Claimants wish to produce a document which cannot be criticised, there remains the difficulty that the Court cannot judge whether the pleading in respect of which it is granting relief is compliant with the rules. As Mr Gibson pointed out, the Claimant's Application notice indicated that the particulars of claim would be served by 30 September. This was not done.
76. Seventhly, on the other hand, if an application for an extension of time (supported by evidence) had been issued following the sending of Leigh Day's letter of 9 July (or, in any event, by 29 July), I have little doubt that an extension would either have been agreed or ordered by the Court. As it was, the application for relief was made reasonably promptly. The failure to comply with the rules was not intentional, there had been no previous infraction of the rules and there was a cogent explanation by Mr Meeran for what had happened.
77. Eighthly, furthermore the fault was that of Mr Meeran and not his clients; and Mr Hermer is entitled to point to the evidence of the very considerable difficulties which Leigh Day face in taking instructions from and communicating with their clients, who are unsophisticated litigants, living in a remote area of Tanzania.
78. Ninthly, if the relief sought by the Claimants were refused, the claims could not continue; and I accept the Defendants' submission that, if new proceedings were commenced, they would be brought under a different and less advantageous costs regime; that NMGML's Tanzanian claim would be the first in time; and that any new claim would be subject to a jurisdictional challenge by NMGML. On the other hand, only one of the claims would be time-barred, and fresh proceedings would result in at least some delay which could (and should) be avoided in a case where the recollection of witnesses may be crucial.
79. Taking these matters into account, as well as the submissions and evidence of the parties, I have to decide the issue by reference to the overriding objective of dealing with cases justly, and particularly (by reference to rule 3.9) the need to conduct litigation efficiently and at proportionate cost, while giving due weight to the importance of compliance with the rules.
80. Notwithstanding some hesitation about this issue, I have concluded that the balance comes down in favour of granting the relief sought, so as to enable the Claimants within a short period to serve particulars of claim in this case. The pleading should address the points contained in this judgment and the additional criticisms of the current way of putting the case made by the Defendants in the course of argument. Accordingly I grant the Claimants' application in the terms of §(b)(ii). The extension will be for a short period from the handing down of the judgment: a matter of days rather than weeks.
81. I will hear the parties on the issue of costs, and directions for the hearing of the Claimants' application for the continuation of the Anti-Suit Injunction made by Turner J, following the handing down of the judgment.