LORD CHANCELLOR REFUSED RELIEF FROM SANCTIONS: CPR 3.9 APPLIES TO THE HIGH AND MIGHTY AS WELL

In the  decision yesterday in Lord Chancellor -v- The former Partnership of Taylor Willocks Solicitors [2014] EWHC 3664 (QB) Globe J upheld a decision of Master Leslie refusing to grant the Lord Chancellor relief from sanctions.  The decision is interesting in that it upheld a pre-Denton refusal to relieve sanctions and has important observations on the interplay of the Mitchell and Denton tests.

THE FACTS

The Lord Chancellor was suing as successor to the Legal Service Commission and claiming repayment of £160,035.28 claimed made by way of interim payments under Legal Aid Certificates.  The last activity in the matter was in 2008. Nothing happened between 2008 and 2013.

• A letter before action was written in August 2013.
•  However the claimant’s correspondence did not, initially, include relevant enclosures.
• Proceedings were issued on the 13th January 2014.
• Thereafter correspondence continued with the defendants asking for disclosure of relevant documents.
• The claim form was served on the 12 May 2014.
• The claimant  requested an extension of time for service of the particulars of claim.
• The defendants responded that time for service had already lapsed.
• The claimants made an application for an extension of time for service.
• Draft particulars were sent 18 days after the claim form had been served.
• Master Leslie refused the claimant’s application on the 4th June.
• On the 9th September 2014 permission was granted to appeal.
• On the 22nd September 2014 the claimant purported to serve the particulars on the defendants.

THE RULES RELATING TO SERVICE

The Rules

1. CPR 7.4 governs the service of particulars of claim. CPR 7.4(2) states:

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

1. CPR 7.5 sets out the latest time for serving a claim form which is:

“…..before 12 midnight on the calendar day 4 months after the date of issue of the claim form.”

1. CPR 7.6 provides for extensions of time for serving a claim form. There are time constraints and CPR 7.6(3) sets out limited circumstances where time may be extended beyond the period of four months prescribed in CPR 7.5. In the context of the case, the latest time for serving the claim form was 13 May 2014. Any service of the particulars of claim after 13 May 2014 required leave of the court, unless the parties had previously reached agreement to extend time for such service or an order of the court had been made before 13 May 2014 under CPR 7.6, neither of which occurred here.
2. An application to extend time for service of the particulars of claim made after the deadline of four months is to be considered with regard to the principles under the provisions for relief from sanctions set out in CPR 3.9.
3. CPR 3.9 states

“(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

to enforce compliance with rules, practice directions and orders.“

THE MASTER’S DECISION

The Master refused the application applying the principles in Mitchell -v- MGN [2013] EWECA Civ 1537. He found:

• There was no good reason.
• The default was not trivial.
• The default was, in fact, very serious.

“Even two weeks after this length of time shows either a lack of understanding of the position or some rather “lese-majeste” attitude, which is to be deprecated.”

THE APPEAL

The Master’s decision was before the Court of Appeal judgment in Denton. The claimant argued that the Master had misapplied the test. The Judge rejected this.

1. The circumstances of the case were considered. In paragraph 23 of the judgment, Master Leslie specifically referred to “all the circumstances of the case”. There is no rule that a judgment has to list everything that makes up such circumstances and a summary of the history of the proceedings had been set out earlier in the judgment. In any event, the following matters are apparent and relevant from the full facts. The claim is not clear-cut with there being limitation, fair trial and liability issues. The claim is almost unbelievably stale. The work was allegedly done 16-20 years ago. After discussions about it between 2006 and 2008, there was then an unexplained delay of five years when nothing happened. The defendants are now prejudiced in defending the claim so long after the event. There was no good reason for not informing the defendants that a claim form had been issued on 13 January 2014 and not being candid in communications in relation to any difficulties in relation to the particulars of claim. When proceedings were eventually commenced, they were incorrectly commenced against the second defendant who no longer exists and the third defendant who has died. Finally, the mere fact that a party has sensibly and proportionately agreed to extensions of time under a standstill agreement does not justify the other party failing to comply with the court rules. Once the claim was issued, the particulars of claim had to be served within the four-month period. All of these considerations point away from relief being granted under both Mitchell and Denton.

THE CRITERIA FOR APPEALS

The Judge noted that the criteria for appeals was limitedl the appellate court had to be persuaded that the initial decision was “wholly wrong”.

DENTON CLARIFIED AND AMPLIFIED MITCHELL IT DID NOT OVERRULE IT

1. Denton has clarified and amplified Mitchell in certain respects so as to avoid any misunderstanding and misapplication of the guidance given in Mitchell. The guidance has not been overruled. It has been strengthened. Attention has been drawn to the importance of a careful examination of the text in CPR 3.9 itself.
2. Master Leslie has considerable knowledge and experience of CPR 3.9 and had a full grasp of the Mitchell principles. Even without the benefit of the judgment in Denton, it is apparent that the Master conducted the three-stage test approach recommended in Denton. The breach was found “not to be trivial”; it was “very, very much the opposite, very serious”. No good reason was found for it. Factors (a) and (b) were stated to be “paramount”, but only in the context of “the overall circumstances of the case”. It is apparent from Master Leslie’s judgment that he did not apply factors (a) and (b) to the exclusion of all else. In that he did not, the difference between the nuanced approach in Denton of regarding factors (a) and (b) as being “of particular importance” rather than “of paramount importance” is not significant against the full background of the case.
3. Notwithstanding the detailed written submissions of Mr Grundy, as expanded upon in the course of oral submissions, there is considerable force in the counter submissions made on behalf of the defendants by Mr Stacey. This is not a re-hearing. I am not here to make an independent first instance decision. I am obliged to consider the appeal in accordance with the appeal principles I have summarised. In my judgment, the decision of the Master was one that he was entitled to reach. It was within the generous ambit within which a reasonable disagreement is possible. I am unable to find it was wholly wrong. It was a considered decision applying the Mitchell guidance correctly. It stands up to scrutiny even when studied alongside the later, amplified Denton guidance. The appeal must be dismissed.
4. Having received written submissions from the parties about what costs orders should be made, it is common ground that costs follow the event of dismissal of the appeal. The appellant must pay the defendants’ costs. I will hear further submissions about the details of such an order if necessary.