GLADWIN & SANCTIONS – AN ANALYSIS 3: AN ADJOURNMENT SHOULD NOT HAVE BEEN GRANTED: A BLAMELESS CLIENT IS NOT A GET OUT OF JAIL FREE CARD

June 20, 2017 · by · in Adjournments, Appeals, Applications, Relief from sanctions

In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In the third of the series looking at the case more closely we look at why the claimant could not adduce the late evidence. Mr Justice Turner held that an adjournment should never have been granted.

“…since the introduction of the Jackson reforms, the general approach of the courts is likely to be less rather than more indulgent of the defaults of legal advisers as a justification for granting forbearance to the litigants themselves.”

A RECAP

The previous article in this series looked at the circuit judge’s view that the witness statement, served late, could still be adduced under the Civil Evidence Act. Mr Justice Turner stated:-

    1. I am of the view that the learned judge was wrong to conclude that his powers were thus limited. He fell into error by assuming that he could not act more robustly to preclude the claimant from relying on his witness statement. He further fell into error by failing to have proper regard to his powers to strike out the claim altogether in response to the claimant’s breaches. I stress, however, that the learned judge conclusions are hardly surprising to the extent that he laboured under the very considerable disadvantage of the articulation of a defence case which was initially pitched too high and which thereafter lapsed into undue reticence. In these circumstances, I am free to exercise my own discretion in the resolution of the matters which fell to be determined by the learned judge.

THE APPLICATION FOR AN ADJOURNMENT SHOULD HAVE BEEN REFUSED

ADJOURNMENT
    1. The claimant had applied to vacate the trial. In the event, the learned judge acceded to this request on the basis that this would give the defendant the opportunity to raise Part 18 and 35 questions. In my view, he too readily followed the path of adjournment. Indeed, the adjournment application should have been refused. Applying the overriding objective, the arguments in favour of granting an adjournment were weak. In the context of a relatively modest claim, the additional expenses generated by an adjournment would have been significant. The claim would not have been expeditiously disposed of and the court’s resources would have been wasted. Serious failures to comply with rules and orders had been perpetrated. As Chadwick LJ observed in Boyd & Hutchinson v Foenander [2003] EWCA Civ 1516 at para 9:
“Nevertheless, in deciding whether or not to grant an adjournment, the court must have regard to the overriding objective of the Civil Procedure Rules set out in CPR 1.1, and in particular at subrule (2) of that rule. Having regard to the overriding objective requires the court to deal with a case, so far as is practicable, in a manner which saves expense, is proportionate to the amount of money involved and allocates to it an appropriate share – but no more than an appropriate share – of the court’s limited resources. Courts are directed (by CPR 1.4) to have the overriding objective in mind when managing cases.”
    1. Indeed, the courts have become less tolerant of procedural default since Boyd was decided. As the author of Zuckerman on Civil Procedure: Principles and Practice 3rd Edition points out at para 11.6:
“The power to forgive defaults, litigant-induced delay and other forms of noncompliance must be exercised so as to further the overriding objective, which has been revised in consequence of Sir Rupert Jackson’s report on Civil Litigation Costs and which is known as Mark II overriding objective Since the best-laid case management plans would be worthless if litigants do not fulfil their process obligations by the relevant deadlines, the success of the CPR system of court control of litigation depends on the court’s ability to secure better standards of compliance. … the criterion for success is whether the court is able to deliver justice with proportionate use of resources and within reasonable time.”
    1. As against this, it is true that the consequences of a refusal to adjourn (as I will find) would have been fatal to the viability of the claim as a whole. After all, liability was not in dispute and the defaults were not those of the claimant but of his advisors. Indeed, on this appeal, much was made of the claimant’s personal innocence of fault. The notes to the White Book at 3.9.9 summarise the position where the blame rests on the shoulders of legal advisers rather than litigants. Particular reference can be made to the case of Training in Compliance Ltd v Dewse [2001] C.P. Rep 46 at p 66:
“Of course, if there is evidence put before the court that a party was not consulted and did not give his consent to what the legal representatives had done in his name, the court may have regard to that as a fact, though it does not follow that it would necessarily, or even probably, lead to a limited order against the legal representatives. It seems to me that, in general, the action or inaction of a party’s legal representatives must be treated under the Civil Procedure Rules as the action or inaction of the party himself. So far as the other party is concerned, it matters not what input the party has made into what the legal representatives have done or have not done. The other party is affected in the same way; and dealing with a case justly involves dealing with the other party justly. It would not in general be desirable that the time of the court should be taken up in considering separately the conduct of the legal representatives from that which the party himself must be treated as knowing, or encouraging, or permitting.”
    1. Furthermore, since the introduction of the Jackson reforms, the general approach of the courts is likely to be less rather than more indulgent of the defaults of legal advisers as a justification for granting forbearance to the litigants themselves. In this respect, I endorse at least the general thrust of the views expressed by Zuckerman (ibid) at paragraph 11.191:
“Although it may appear unjust at first sight to refuse an extension of time or relief from sanction when the default was due to the carelessness of a party’s legal representatives, it causes greater harm in the long term to spare litigants the consequences of their lawyers’ defaults. A policy of absolving clients from the consequences of their lawyers’ default undermines the court’s ability to enforce process requirements because it obliges the court to grant relief whenever a legal representative puts up his hands and accepts responsibility. This imposes a burden on the administration of justice and on the opponent. Tolerance of lawyer’s default encourages sloppy practice and satellite litigation, thereby making litigation more hazardous and the cost more unpredictable.”
  1. Of course, I fully recognise the prejudice which would be occasioned to the claimant in having to look to his advisers for redress and the potential disadvantages, including the loss of privilege, which this entails. I accept that this is a factor to be borne in mind but, in the circumstances of this case, it does not attract sufficient weight, when taken in combination with all the other relevant factors to be taken into account when seeking to apply the overriding objective, to prevail.”
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