Playing by the rules

Remember Plebgate? The story of what Andrew Mitchell MP may or may not have said to the police will run for some time yet. For lawyers, however, it has a different connotation: Mr Mitchell subsequently sued News Group Newspapers Ltd in connection with the reporting of the incident. Mr Mitchell’s solicitors served his cost budget six days late. This breach of the rules caused substantial extra work and extra costs to be incurred by the defendant and disrupted the work of the court on other matters. Mr Mitchell applied for relief from the sanction which would otherwise be imposed by the court as a result of this breach; namely that he could not recover any of his costs other than those of issuing the proceedings, irrespective of the result.

The court refused to grant relief from the sanction. Mr Mitchell appealed against this decision and in refusing his appeal the Court of Appeal, led by the Master of the Rolls, took the opportunity to lay down a number of guidelines which focused around the application of Civil Procedure Rule 3.9. This rule states that if a party applies for relief from any sanction imposed by the court for a failure to comply with any rule the court is to consider “all the circumstances of the case” to enable it to deal justly with the application including the need (a) for litigation to be conducted efficiently and at proportionate cost and (b) to enforce compliance with rules, practice directions and orders. The Court of Appeal emphasised that the need to comply with rules, practice directions and orders is essential if litigation is to be conducted in an efficient manner.   

Consequently, a whole raft of cases was generated exploring the boundaries of the guidelines. In particular, their strict requirements were employed tactically to take advantage of any failure to observe the rules, however slight. All of this culminated in the need for the court to revisit the guidelines. The court chose three separate actions, all of which were appeals against the use of the guidelines, to do so. The lead case was Denton vs White and Another and the three appeals were all heard on 4 July [2014] EWCA Civ 906. 

In future the court is going to be more ready to penalise opportunism arising from a trivial failure to meet a rule or deadline

The court was again led by the Master of the Rolls. Plainly the intention is to set a marker down for future reference and to discourage lawyers from trawling through earlier decisions. The court observed that Mitchell had been “misunderstood and misapplied” and the three decisions on appeal illustrated that point well. One was an example of an overly lax attitude towards breach of a court order and the other two were overly draconian.   

The court noted that the guidance in Mitchell was substantially sound but needed to be “clarified and amplified”. The court then set out a three-stage approach to the operation of rule 3.9:

• Assess the seriousness and significance of the default
• Consider why the default occurred
• Evaluate all the circumstances of the case so that the court can deal justly with the application, giving particular weight to the need to enforce compliance with rules and orders.  

Whether something is serious or significant or not will often depend on whether it disrupts any other aspect of court business or the case timetable itself. Why a default has occurred and whether there is a good reason for it will require some examination but the court was not going to be drawn into giving a list of good and bad reasons for a failure to comply. 

The third stage is a formulation that allows the court some room for manoeuvre. The court noted that there had been a misunderstanding by some judges in the past that if there had been a serious or significant breach and no good reason for that breach, the application for relief from sanctions would automatically fail. That is not the case. In such circumstances the courts still needed to use this third stage to evaluate the matter in the round. 

The court noted the spirit of non-cooperation that had occurred following Mitchell and stated that this should be discouraged. In future the court is going to be more ready to penalise opportunism arising from a trivial failure to meet a rule or deadline. This is likely to result in heavy costs sanctions on parties that behave unreasonably. 

So the pendulum swings the other way: arguably the over-strict approach in Mitchell has now received some welcome clarification which will allow for a more nuanced and less confrontational attitude than we have seen recently. Or have we in fact just gone full circle?

Simon Lewis is partner in the construction and engineering team, Bond Dickinson