DENTON: THE DISSENTING JUDGMENT OF JACKSON L.J. CONSIDERED

In the hundreds of articles, blogs and commentaries on the decision in Denton the “dissenting” judgment is barely mentioned or considered.  Whilst all three members of the court were in agreement that each of the appeals should be allowed there was a disagreement in relation to the emphasis that should be placed on the individual elements of the test in CPR 3.9.  Here we look at the “dissenting” judgment of Jackson L.J.  The judgment contains some interesting observations and may have an impact on the outcome of some applications for relief from sanctions.

THE JUDGMENT OF JACKSON L.J.

Jackson L.J. agreed with the majority  on the first two stages of the Denton test.   However he had a different view on the two individual factors set out in CPR 3.0.

“Rule 3.9 requires the court to consider all the circumstances of the case as well as factor (a) and
factor (b). The rule does not require that factor (a) or factor (b) be given greater
weight than other considerations. What the rule requires is that the two factors be
specifically considered in every case. The weight to be attached to those two factors
is a matter for the court having regard to all the circumstances. The word “including”
in rule 3.9 means that factors (a) and (b) are included amongst the matters to be
considered. No more and no less. As the Bar Council put it in their submissions,
factors (a) and (b) should “have a seat at the table, not the top seats at the table”.
Ultimately what rule 3.9 requires is that the court should “deal justly with the
application”.

86. The reason why the rule has been amended to require courts to give specific
consideration to factors (a) and (b) is that previously courts were not doing so. This is
a point which Professor Zuckerman makes in his article The revised CPR 3.9: a coded
message demanding articulation (2013) 32 CJQ 123 at 134, although he criticises the
wording of rule 3.9 as being anodyne and saying nothing that is not already in the
rules.

1. As the Master of the Rolls and Vos LJ demonstrate, it is legitimate to have regard to the Review of Civil Litigation Costs Final Report (“Final Report“) as part of the background when construing the new version of rule 3.9.

1. Chapter 39, paragraph 6.5 of the Final Report identifies the mischief at which this particular reform is directed:

“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 FIRST INSTANCE DECISION IN DENTON: AN EXAMPLE OF THE BAD OLD DAYS

The judgment then goes on to look at the first instance decision in Denton.

1. Denton is a good illustration of how courts used to operate under the former rule 3.9 (but should not operate under the new rule). In his concern to enable the claimants to deploy their full case the judge did not consider factor (a) or factor (b). If he had considered all the circumstances of the case as well as factor (a) and factor (b), he would have refused relief. The judge’s order that the claimants pay “the defendant’s costs thrown away by the vacation of the trial” does not begin to meet the justice of the case. There are many hidden costs flowing from adjournment of the trial: witness statements and reports need updating; fee earners handling the litigation may change with a need for newcomers to read into the case; both legal teams continue to work upon the litigation and so forth. In addition to the increased costs there is wastage of resources. Lawyers, experts, factual witnesses and other busy people who had cleared their diaries to attend the trial (probably cancelling other commitments) will have to clear their diaries yet again for another trial a year later. There is also the continuing strain on the parties to consider. What litigants need is finality, not procrastination. Quite apart from its impact on the immediate parties in Denton, the judge’s order has caused unnecessary delay for many other litigants awaiting their day in court.

90.The parties in Denton, Decadent and Utilise are either small businesses or businessmen. Litigation is a massive drain on management time and an unwelcome diversion of resources for any business. It is important for the economy that the courts provide swift and just resolution of disputes involving SMEs: see Preliminary Report chapter 29 and Final Report chapter 25. Hence the need to minimise delay and avoid adjournments or satellite litigation.

UNDERSTANDING THE RECOMMENDATION IN THE JACKSON REPORT

Recommendation 86 of the Final Report stated:

“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.”

THIS RECOMMENDATION IN CONTEXT

1. . Recommendation 86 was necessary for two reasons. First, the culture of delay and non-compliance was one of the (numerous) causes of high litigation costs. This cause needed to be tackled along with all the others. Secondly, as the Law Society pointed out in the passage quoted above, the (then anticipated) package of civil justice reforms would not bring any benefit unless the new rules were actually enforced.

1. The new rule 3.9 will not play any part in promoting access to justice at proportionate cost if it continues to generate satellite litigation on the present scale or if it leads to results such as we have seen in each of the three cases under appeal. I agree with the Master of the Rolls and Vos LJ that co-operation should be encouraged and satellite litigation should be discouraged by the means that they propose.

1. If rule 3.9 is construed as I propose above, this accords with the natural meaning of the language used and also gives proper effect to recommendation 86. The rule becomes an aid to doing justice. The new rule 3.9 is intended to introduce a culture of compliance, because that is necessary to promote access to justice at proportionate cost. It is not intended to introduce a harsh regime of almost zero tolerance, as some commentators have suggested.

1. My approach to the construction of rule 3.9 leads to the same result in the three cases under appeal as that reached by the Master of the Rolls and Vos LJ. These three cases are all extreme examples of judges misapplying rule 3.9, albeit at opposite extremes. There will be other less clear cut cases where the difference of opinion between my colleagues and myself may matter. That is why I am delivering this separate judgment agreeing in the result, but dissenting on the issue of construction.

1. Finally, for the avoidance of doubt, although I was not a member of the court which decided Mitchell, I am not criticising the actual decision in that case. The master made a very tough order in Mitchell, as demonstrated by Professor Sime in his article Sanctions after Mitchell (2014) 33 CJQ 133. Nevertheless that order was not outside the permissible range of her case management discretion, as the Master of the Rolls and Vos LJ explain in paragraph 9 of their judgment.

REMEMBER THAT JACKSON L.J DID NOT DRAFT THE REVISED CPR 3.9

I have written before that CPR 3.9 in its current reform does not reflect the proposal put forward in the final Jackson Report.

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.”

COMMENTARY: WHERE MITCHELL WENT WRONG: IT FORCED LITIGATION TO BE ABOUT LITIGATION

Jackson L.J. goes on to point out that he was not a member of the court that decided Mitchell, however he was not critical of, and upheld, the decision of the Master in that case.

However as the judgment in Denton pointed out where the Mitchell test as originally “construed” went wrong is that it positively encouraged litigation about litigation in circumstances where the underlying merits of the case were totally overlooked.   Cases could be (and were) won on the most technical of the procedural points.   Sanctions, which no-one had realised existed, were found and used against litigants (and litigators).  The issues of justice; proportionality and, let us be honest, basic commonsense, were shoved to one side. Procedure ruled for procedure’s sake.  A lawyer could be negligent in not taking a procedural point.  All of this undermined, almost totally, the aims of the Jackson reforms.

A balance clearly has to be found. The next 12 months are going to be interesting.