LITIGATION AFTER JACKSON (POST DENTON EDITION): 12 POINT SURVIVAL GUIDE
In August last year I wrote Litigation after Jackson a 10 point Survival Guide. All of the points made in that post remain valid. I have added another 2 to deal with the situation post -Denton. The biggest danger, post Denton, is complacency. Much useful guidance comes from the Denton decision. However it was not a signal that rules, orders and practice directions can be ignored (far from it). Relief from sanctions was refused in the Denton case itself. These 12 key points deal with some of the major problem issues post Denton.
Rule 1: Don’t assume you are going to win a case on a technicality following your opponent’s default: “opportunism” can be dangerous.
For the past six months we have had a period of “Mitchell Madness” with much litigation, essentially being about nothing more than litigation itself. Satisfying though it is to defeat your opponent on technical grounds (it justifies all those years at law school and shows you are a better lawyer) clear and careful advice has to be given to a client who wants to resist an application for technical grounds. If the court judges a respondent’s resistance to be “opportunistic” not only can it award the costs of the application against the respondent it can have significant costs implication for the entire action, whether the respondent to the application eventually wins or loses. Taking “technical” points can now backfire badly. Proceed with care. In the vast majority of cases the action is going to be fought, or settled, on its merits.
Rule 2 : If you are in default don’t assume you are going to benefit or get your costs (and especially don’t assume you are going to get relief from sanctions).
Talking to some District Judges recently it was clear that Denton has been (badly) misunderstood in some quarters. Some litigants were turning up at court the Monday after the Denton decision stating that they needed relief from sanctions and the respondent’s to the application had to pay for it. That is not what Denton says. Denton penalises “opportunistic” respondents. It does not say that a respondent should always pay the costs of an application for relief from sanctions, rather that unreasonable opposition could lead to cost penalties. The Court of Appeal were silent about the costs of application for relief from sanctions, however it is unlikely that a party in default will recover it costs if the respondent has acted reasonably; further those costs may be confined to the costs that arise out of the respondent’s unreasonable conduct and not the costs of the entire application, see the costs decision in Lakatamia Shipping -v- Nobu Su  EWHC 796 (Comm).
Remember that Denton does not mean that every application for relief from sanctions will automatically succeed. Far from it. The Court of Appeal, in the Denton case itself , overturned a decision granting relief from sanctions in relation to late service of witness statements. If you require relief from sanctions there are no guarantees of success. See Denton the individual cases.
Rule 3: Have everything ready pre-issue and have a plan.
Effectively this means that you have, almost, to be ready for trial when you issue. Have the Particulars of Claim to hand; witness statements and all relevant documents. Further you must have a clear idea of your cost budget.
Rule 4: Once you have issued serve the Claim Form promptly
Nothing has changed here. Failure to serve the Claim Form properly remains one of the key problem areas in litigation.
- Make sure you know where you are to serve.
- Make sure you know who to serve.
- Make sure you serve within the rules.
- Make sure you serve before the expiry of the period allowed for service.
Rule 5: Serve the Particulars of Claim with the Claim Form if you can.
We have had two recent examples.
- The claimant came to grief in Venulum Property Investments Ltd –v- Space Architecture Ltd & 9 others EWHC 1242 (TCC) in assuming that they had 14 days after service of the claim form to serve the Particulars. At the end of the four month period they did not. The court did not grant an extension.
- The claimant nearly came to grief in Hills Construction –v- Struth  EWHC 1693 when the defendant applied to strike the action out because the Particulars had not been served 14 days after the claim form. However the judge found that the claim form had not, in fact, been served. The judge stated that if he had been asked to exercise his discretion on the law after the 1st April he would not have granted the claimant an extension.
Rule 6: Serve your witness statements on time even if your opponent is not complying.
See the observations of Judge Pelling in Fons HF –v- Corporal Ltd & Pillar Securitisation  EWHC 1278 (Ch).
“all parties and the wider litigation world should be aware that all courts at all levels are now required to take a very much stricter view of the failure by parties to comply with directions, particularly where the failure to comply is likely to lead into a waste of the limited resources made available to those with cases to litigate”
The judge stated that if an opponent was in default then the proper course of action is for the party who wants to comply to send the statements “in escrow” in a sealed envelope.
This principle applies post-Denton. If an extension is not agreed (or you will go outside the 28 day period of agreement allowed by the rules), serve the witness statements in a sealed envelope.
Rule 7: Serve your Form H on time.
If the Form H is late then there is a presumption that a party is litigating just for court fees. There is no guarantee that a court will grant relief from sanctions.
In Denton the Court of Appeal allowed relief from sanctions for a witness statement served slightly late. However if late service impedes the substantive hearing then this may militate against relief from sanctions.
Rule 8: Assume that every order of the court order is a peremptory order
Even post Denton This can be the only safe working assumption. If a party is in breach then they need permission. Permission may not necessarily be granted.
Rule 9: If you cannot comply with an order apply in advance of the date for breach
This is an important point. Making an application ahead of the date for breach gives rise to a wholly different approach to the issue of breach and relief, see Robert –v- Momentum Services Limited  EWCA Civ 299 and the discussion “Extensions of time after Jackson: Safety First”http://civillitigationbrief.wordpress.com/2013/06/26/extensions-of-time-after-jackson-safety-first/ and Making an application ahead of date of default saves the day
- There is no guarantee that the court will grant your extension.
- You may find yourself getting 14 hours to comply rather than 14 days.
- The rules relating to applying for extension of service of the claim form are wholly different and very draconian.
Rule 10: Prepare for the case management hearing carefully
This was never a hearing that could be taken for granted. Some courts have very specific rules. See
Rule 11 Use the standard directions.
These are supposed to mandatory. Their use will save much grief.
Rule 12: Make an early and decent Part 36 offer
This now applies to both parties.
There are major advantages to a claimant who makes a Part 36 offer which is not beaten at trial,
A Part 36 has to be beaten to be effective for the party making the offer. Being “near” is not enough
Summary: Denton helps but be careful out there!
In August last year I wrote
“Until we see how the new regime beds down it is clear that civil litigation is a dangerous place for litigators for all sides. The only safe course of action is to comply with all court orders to the letter (and date) and – hopefully – watch the developing case law on the subject from afar.”
This guidance remains prudent. The Denton principles still have to be developed by case law. Your main aim has to be that you are not a party when that case law develops.