WELL WHAT SHOULD THE TEST FOR RELIEF FROM SANCTIONS BE? YOUR CHANCE TO COMMENT
“Is there not a more imaginative way to encourage parties to co-operate? Looking at some of the circumstances litigation had been utterly derailed due to satellite litigation. This is inappropriate in 99% of cases. We need a message saying that parties should think hard before stopping proceedings for procedural points.”
Voss LJ in the course of the submissions made on behalf of the Law Society and Bar Council yesterday.
THE APPROPRIATE TEST FOR RELIEF FROM SANCTIONS
One unusual aspect of the Court of Appeal hearings on sanctions heard on Monday and Tuesday this week (all of which have been written about on this blog) is that all the advocates were given an opportunity to comment on the Mitchell criteria generally. The advocate for the Bar Council and Law Society was given a specific invitation to assist the court in how the criteria should be construed.
We need help from you as to how you say we should modify the guidance. I am not clear as to if you are saying that we should get rid of the Mitchell guidance or supplement it or what? It will be useful if you could address this after the adjournment.”
THE DIFFICULT BALANCING ACT
The courts have to find an appropriate test to ensure that cases can be case managed properly but to avoid procedural points being taken. No easy task.
There have been numerous critics of the Mitchell criteria (some of them vehement critics). However, on occasions, criticism is easy. Constructing a test that is robust, and yet avoids procedural point scoring, is much harder. That is why I am inviting all those who have criticised and commented over the past few months to use the comments section of this blog to put in their own test/guidelines.
I imagine that there may be some partisan suggestions (claimant’s breaches ok, defendant’s bad etc), however a civil procedure system has to try to be even-handed.
MY “STARTER FOR 10”
Having invited people to do it I have to have a go.
My view is that:
- Mitchell is an appropriate test where a party has breached a peremptory order and where that order has been made on notice and the defaulting party has had notice of the order in good time before the due date of compliance (which is not something that always happens).
- The real problem with Mitchell is that there was no peremptory order, indeed no sanction in place at all, at the relevant time.
- Where a party defaults the court’s normal reaction should be to make a peremptory order (on notice) and to order the defaulting party to pay the costs of default forthwith.
- Where a default is non-material, and the “innocent” party is not affected by the default but contests a hearing then the additional costs of the hearing should be paid for by the innocent party. (Subject to the discretion of the court).
- Relief from sanctions should not be exercised in cases where a party has deliberately breached a rule in order to gain a forensic advantage (for instance served witness statements late).
- If any additional costs are incurred by a breach, and those costs will go over into the trial, then the defaulting party should pay those costs regardless of the outcome.
I am sure I have not covered everything. However this is a difficult process. Which is why I am seeking the combined wisdom of the legal profession. At the very least we can compare our views with the eventual outcome.
SO ITS OVER TO YOU?
There have been plenty of critics. The comments section of this blog awaits anyone willing to have a go…
(“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly; who errs and comes short again and again; because there is not effort without error and shortcomings; but who does actually strive to do the deed; who knows the great enthusiasm, the great devotion, who spends himself in a worthy cause, who at the best knows in the end the triumph of high achievement and who at the worst, if he fails, at least he fails while daring greatly. So that his place shall never be with those cold and timid souls who know neither victory nor defeat.”
I think you have hit the nail on the head, which is that the real problem with Mitchell is that it wasn’t a peremptory order. The reality, which everyone seems to have been too polite to mention this week, is that the Court of Appeal had a rush of blood to the head and said what they said in the wrong case. If they had waited until the Durrant case a week or two later, there would have been much less difficulty. That was a classic example of what went wrong under the old rules, which Jackson wished to correct: that parties were being allowed to come back even if the face of final orders and repeated, non-trivial breaches.
Surely all Jackson intended was to remind judges what about half of them had lost sight of – that the overriding objective even pre reform required judges to consider other court users,
limited resources and the wider consequences of a culture of non-compliance. It was not just about prejudice Jackson did not mean one strike and you are out.
Mitchell was a classic case for a peremptory order, forthwith indemnity basis costs order, supervising party directed personally to attend court.
One of the most important early CPR principles – in cases like Biguzzi but probably more importantly the now wrongly forgotten Walsh v Misseldine – is that it does not need to all or nothing, there is not a single sanction of strike out, but a whole palette of sanctions: costs, interest penalties, compulsory payments into court. The court in Mitchell could perhaps have been reminded of that.
Why can’t parties who waste court time also be made to pay the actual costs of wasted court time. It ought to be possible to work out a “liquidated damages” like going rate per hour of court time to be set by a PD. So, if it costs £1,000/hour to run a typical court, and you waste a 3 hour hearing, you pay that sum to the HMCTS as an additional species of wasted costs.
On the other hand, one of the ironies of Mitchell is that, in my experience, courts waste far more time of practitioners than the other way around.
The sad reality is that the Court of Appeal was looking for a case in which to send out a strong message that the rules are there to be complied with – but, in its haste to do this, it chose the wrong one. It would take a very brave (and contrite) Court of Appeal now to admit this, but it would go a long way to restoring the credibility of the Court in the eyes of practitioners.
The Court of Appeal is in danger of developing a track record of opening the judicial mouth and then deciding to engage the brain at a later date: it did it in Simmons v Castle, as well as in Mitchell. At the risk of stating the obvious, this sets an extremely poor example. In the context of Mitchell, the Court of Appeal is now saying “we want practitioners to be reasonable, even though we handed down a judgment which was not reasonable”.
The answer (aside from departing from Mitchell or distinguishing it into non-existence, which the Court is not going to want to do) is to make the point that, in the final analysis, what any Judge should be striving to achieve is a fair result: see, for example, the judgment of Nicholas Strauss QC (sitting as a Deputy Judge) in Gordon v Fraser.
This does not mean that failures to comply with the rules should be overlooked. It means simply that one must not elevate the rules (which, let’s be blunt, are just secondary legislation) into something which trumps justice. There was no good excuse for the delay in Mitchell, but it caused no one any significant prejudice and could and should have been dealt with through an appropriate costs order. That would have been a much fairer outcome – and, presumably, the Civil Procedure Rules were not intended to (and do not) dilute the Court’s desire or obligation to achieve fairness.
“Is there not a more imaginative way to encourage parties to co-operate?” Sorry to be the bearer of bad news, but litigation is not about cooperation. It is about doing the best you properly can to help your client win the case. Frequently, that involves the very opposite of cooperation. Litigation is not like a building project, where everyone has (or should have) an interest in working towards the same result. It is a project where the parties usually want diametrically opposed results. Taking an over-rigid approach to granting relief from sanctions is the very last way to encourage parties to cooperate, because it encourages them to take every procedural point, however poor that point may be.
“Litigation is not like a building project, where everyone has (or should have) an interest in working towards the same result. It is a project where the parties usually want diametrically opposed results. ”
I respectfully disagree. The CPR do encourage the parties to have an interest in working towards the same result – i.e. resolution of the dispute. This, I think, is what the test must be based on. Anyone who doesn’t approach litigation in the spirit required by the CPR, that is by working towards resolution of the dispute rather than trying to “win” by whatever means, is at risk of sanctions for non-compliance.
How about this:
No relief for default that fails to meet timetable or causes prejudice to opponent.
No need to apply for relief if other default. Issue to be dealt with in costs.
False breaches, e.g. Failure to serve n251 after having already provided same info in earlier doc, do not constitute a default.
Granted extension applications result in unless orders.
Yes, the parties want the dispute resolved, but that does not mean they have an identity of interest about the terms on which the dispute is resolved. It is simply naive to think that litigation is about cooperation. It is not. If the parties were in the mood to cooperate, they would not be in court in the first place. Parties will cooperate when it is in their interests to do so; when it is not, they will not. Litigation is adversarial and trying to impose notions of cooperation on it is like trying to paint zebra stripes onto a leopard. If the courts want the parties to cooperate, they (the courts) will have to move to an inquisitorial approach.
” It is simply naive to think that litigation is about cooperation. It is not.”
I don’t understand this argument and appreciate that I may be missing something. If anyone can help me understand then I would appreciate it. It seems like a rather old fashioned viewpoint.
“Parties will cooperate when it is in their interests to do so; when it is not, they will not.”
Litigation is about cooperation according to the CPR isn’t it? And given that the Rules say that parties must cooperate, isn’t it therefore in the parties’ interests to cooperate and fair enough that they face sanctions if they don’t?