Monday, 27 January 2014

After Mitchell

If there was any suspicion that Mitchell-v-News Corporation was merely an exercise in sabre rattling and not the beginning of a real war on delay by litigants, that suspicion can now be laid to rest. I predicted that Mitchell would be the most quoted case of 2014 and am on course to be proved right. Two very recent cases caught my eye. In the first, I am not sure that a different decision would have been reached before Mitchell or the new 3.9. In the second, the extent of the new judicial intolerance of delay is made painfully clear.

A view from Liverpool County Court.
 Are the Judiciary going too far in trying to get their message across?

Don't Rely on Indulgence from the Trial Judge

First, in Thavatheva Thevarajah-v-Riordan and others the respondents had failed to comply with an unless order to provide information by a certain date. A High Court Judge had refused them relief from sanctions but they renewed that application at trial before a deputy high Court Judge and relief was granted. To the Court of Appeal's understandable dismay, "the deputy judge before whom the matters were listed allowed more than four of the five days allotted to the trial to be spent on the relief application, and on the grant of relief by him the existing trial window was vacated and a direction was given for the trial to take place in a new trial window commencing on 27 January 2014, with a revised time estimate of eight days." 

The decision had been made before the Court of Appeal's decision in Mitchell, but Mitchell was still quoted at length by the Court when allowing the appeal.

The Court May not Sanction and Agreed Extension of Time

Second, there is the judgment of Mr Justice Turner in  MA Lloyd-v-PPC, which begins, inauspiciously for the defaulting party:

"This case provides yet another example of a litigant treating an order of the court as if compliance were an optional indulgence."

The unhappy history of the case need not trouble us, save to note that the claimant's attempt to "comply" with the court's order was unimpressive. In short the claimant was in default of an order to file and serve witness statements. The defendant sought only a new timetable, an approach regarded by the court as too timid. At paragraph 27 the Judge held:

"CPR 32.10 specifies the consequences of failure to serve a witness statement. It follows that even if the parties had purported to reach a concluded agreement on an extension of time this would not have been effective unless the court were to be persuaded formally to endorse it. This court is under a duty under CPR 1.4 not simply to adjudicate passively upon the applications of the parties or to rubber stamp their reciprocal procedural indulgences but actively to manage cases. To this end, the court has power under CPR 3.3 to make orders of its own initiative." 

Take a moment to let this sink in. The courts might well accept late service of statements if the parties have agreed it and there are no adverse consequences for the conduct of the litigation, but no-one can safely assume that the court will "indulge" and agreed extension of time. Thus, the only safe course is to apply in advance to the court. Applications take time and money and use up the court's resources.

As an astute source pointed out to me, CPR 32.10 refers to a "witness statement or a witness summary for use at trial..." whereas in MA Lloyd the witness statements were ordered for an interlocutory hearing. Nevertheless it appears that the interlocutory hearing was in relation to important issues which were to be tried. Hence, I presume, the witness statements were intended for use at trial as well as at the interlocutory hearing.

Anecdotal evidence is flying around of cases being struck out for short delay in lodging trial bundles and other such calamities.

Keep calm and don't carry on as before.

PS. After publishing the post above, I saw a neat suggestion on twitter: at first directions seek an order permitting the parties to agree extensions of time for compliance with any of the court's orders for up to 14 days without requiring further permission of the court. I suppose some courts would not agree to that solution (why not simply extend the timetable by 14 days!) but others will see the sense in allowing a degree of flexibility where the parties can be trusted not to treat compliance as an "optional indulgence".

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