WHAT THE JACKSON REPORT SAID 1: SANCTIONS: WHAT WAS SAID & WHAT HAS HAPPENED?

There are lots of events coming up dealing with the first anniversary of the Jackson reforms.  It would be an opportune time to look back at the Jackson Report itself to remind us what it said on certain key issues.

WHAT THE JACKSON REPORT SAID

In the Final Report  Jackson L.J.  recommended that CPR 3.9 be amended.  This part of the report is instructive. At 6.7 of the Final Report (p.397) he discusses the need for a change to CPR 3.9.

“Proposed rule change.

 I recommend that sub-paragraphs (a) to (i) of CPR rule 3.9 be repealed and replaced by: 

“(a) the requirement that litigation should be conducted efficiently and at

proportionate cost; and

(b) the interests of justice in the particular case.” 

This form of words does not preclude the court taking into account all of the matters listed in the current paragraphs (a) to (i). However, it simplifies the rule and avoids the need for judges to embark upon a lengthy recitation of factors. It also signals the change of balance which I am advocating.”

WHAT ACTUALLY HAPPENED

This form of wording was not adopted. Instead “the interests of justice in the particular case” was replaced with CPR 3.9 in its current form.

“3.9

(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.”

HOW THIS HAS BEEN CONSTRUED

This wording, with its reference to the court being enabled to “deal justly with the application” may not have been so bad.  However it was given a construction in the Mitchell case that meant the “justice of the case” itself almost became an irrelevance.

At paragraph 37  of the Mitchell judgment the two specific criteria mentioned were regarded as paramount.

  1. “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.”

WHAT HAVE BEEN THE RESULTS? SOME “RIDICULOUS” DECISIONS (NOT MY WORDS)

Litigation Futures carries a report of the Master of the Rolls’ remarks at the Civil Justice Council review of the first year of the reforms.

“Closing a Civil Justice Council event on Friday on the first year of the Jackson reforms, Lord Dyson said that despite the criticism leveled at the decision during the day, he remained “fairly unrepentant about what we said” in the ruling.

He argued that nobody had criticised the principle that relief should be granted if a breach is trivial or occurs for good reason – the problems had come in the application of this approach, and he said he had heard of some “ridiculous” decisions by district judges not granting relief.

While the Court of Appeal expected judges to be firm, “the guidance has to be applied in a sensible way”.

HAS THE AMENDMENT TO CPR 3.9 MET THE AIM OF SIMPLIFYING APPLICATIONS FOR RELIEF?

There are now a cluster of cases on their way to the Court of Appeal, and an application to the Supreme Court.    A blog post yesterday recounted how, on an application for relief from sanctions, the judge heard citations from seven cases. In comparison applying the criteria in the old CPR 3.9 was simplicity itself.