Friday, 29 November 2013
Reflections on a grave new world of disproportionate sanctions
There can be very few civil litigation lawyers unaware of Lord Dyson MR’s judgment in this case. If any warning of the new post Jackson tough line were needed, it can certainly be found here: stated in blunt terms. This judgment, and in particular the guidance offered at paragraph 40 and following, is essential reading for anyone wishing to stay in business as a civil litigator.
There is no need to recite the case facts here as a host of commentators have done so at length. My own analysis is published by Lexis Nexis in the BPILS Bulletin. I prefer to reflect on the lessons to be drawn from this case.
CPR 3.9 requires a court to consider the need (i) for litigation to be conducted efficiently and at proportionate cost and (ii) to enforce compliance with rules, practice directions and court orders. The Court of Appeal held that these considerations are of paramount concern. This rule change reflects a deliberate shift of emphasis imposed by the post-Jackson civil justice reforms. Although CPR 3.9 requires the court to consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’ and although this is capable of including the other factors listed in the earlier version of this rule ( e.g. whether the breach was intentional, the applicant’s other conduct, whether relief was sought promptly etc ) the two consideration listed above trump all other factors.
We are given useful guidance on how the courts will apply CPR 3.9 at paragraphs 4o to 46 of the judgment. If the breach is anything other than trivial then a heavy burden lies on the defaulting party to persuade the court to grant the relief. Unless there is a very good reason (e.g. serious illness or injury of the party’s solicitor or some other intervening factor) then the presumption will be that the sanction imposed, whether by court order or automatically under the rules, is appropriate and should not be disturbed. Inadvertent default through oversight or pressure of work are likely to be given scant regard, as these salutary words from the judgment make clear: ‘Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines’.
It is is worth noting that the Court approved Lord Dyson’s earlier observations in his recent lecture on the Jackson reforms delivered in March 2013, in which he said:
‘The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations. ...(these obligations)... serve the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the court enables them to do so.’
This message may be unwelcome but that is no reason to shoot the messenger. The Court of appeal’s hands were tied by the recent revisions wrought to the CPR; no other outcome was likely or in the writer’s view perhaps even possible.
One of the most subtle (and to many, invidious) changes wrought by the new CPR, has been the redefinition, within the CPR 1 Overriding Objective of what is meant by the term ‘Justice’. This is now appears to be something considerably less than the ideal form envisaged by the ancients or by more recent conventional jurisprudence. The rights of individuals to a just determination are now subordinated to the perceived greater public good of rigid adherence to the CPR. Cutting off the hand of a pick-pocket may an effective means changing someone’s behaviour but in a modern civilised society this kind of Procrustean approach is generally thought to be neither proportional, just nor intelligent. Depriving a litigant of the right to recover his any legal costs for a relatively innocuous non-contumelious bungle, albeit one that wasted a little of the court’s time (hardly the most wicked act!) when other far more proportionate sanctions are available and appropriate, does rather stick in one’s craw; if only for its lack of moderation. It would be easy to summon up the spectre of a dystopian legal system in which increasingly oppressive sanctions are imposed by manic rule committee gnomes and then exploited by an avaricious privatised Court Service, the latter is apparently under consideration by the present Government, however I prefer to live in hope!
The lessons to be learnt from this ruling are that those firms that have failed to undertake a post-Jackson risk assessment and to review their fee earner caseloads as well as their training and general competence on CPR rule compliance run the risk of suffering a nasty costly surprise. I am reminded of Samuel Johnson’s wry note that the knowledge of an impending penalty does indeed concentrate the mind wonderfully!
There can be no doubt that the courts will now follow this robust (aggressive?) approach to imposing the sanctions. Two high court judges who adopted a more lenient (proportionate?) approach were named and shamed in this judgment. Civil litigators operate in a grave new world, one that will show scant sympathy for the pressures that many practitioners face as they seek to increase caseloads to make up for the savage hair cut on recoverable costs. A wise practitioner friend of mind mentioned that there could be a silver lining to all of this: it is great business for costs draftsmen!
It seems likely that we will see a succession of ill advised pre-emptive strikes by one party or another seeking to win a tactical advantage from an opponent’s procedural discomfiture, perhaps decisively, by raising a non compliance issue and then calling for the court to exercise its powers to impose a draconian penalty. Yet, they should not loose sight of Dyson’s comments at  of his judgment:
‘ The revisions to the overriding objective and to rule 3.9, and particularly the fact that rule 3.9 now expressly refers back to the revised overriding objective, are intended to make clear that the relationship between justice and procedure has changed. It has changed not by transforming rules and rule compliance into trip wires. Nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice. If that were the case then we would have, quite impermissibly, rendered compliance an end in itself and one superior to doing justice in any case. It has changed because doing justice is not something distinct from, and superior to, the overriding objective. Doing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at proportionate cost. Justice in the individual case is now only achievable through the proper application of the CPR consistently with the overriding objective.’
All very well...But if you equip antagonists with sharp knives, you can hardly complain when they get used, especially if the stakes are high and the going is getting rough; its only human nature. So there will be few surprises if a bout of vicious satellite litigation, as the excesses of the new regime are tested to the full, becomes Mitchell’s immediate legacy.