At one time in our legal history there were numerous "writs" each with its own peculiar process. Naturally, this was a pitfall even for the lawyers of the day who tirelessly laboured in the old Common Law Courts and the Court of Chancery. The late 19th century saw reform of the court system. Procedure was simplified and, for many years, lawyers lived with their rule books such as Rules of the Supreme Court. (The term "Supreme Court" referred to the High Court. the Crown Court and the Court of Appeal - now known as the "senior courts" - and should not be confused with the modern Supreme Court of the UK which has its own Rules). In April 1999, the old rules of court were replaced by the Civil Procedure Rules which have now reached their 68th update. (There are also Criminal Procedure Rules).
The case of Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537, saw the Court of Appeal (Civil Division) taking a tough line in relation to the "cost-budgeting" provisions in the Civil Procedure Rules and which were introduced from 1st April 2013.
Solicitors acting
for Mr Mitchell failed to file a costs budget and, pursuant to CPR rule 3, the judge at first instance, Master McCloud, ordered that the claimant would only be able to recover the court fees incurred in the action and no other costs. A second order by Master McCloud refused to grant relief from that sanction pursuant to CPR rule 3.9.
Lord Dyson MR commenced by saying: "This is the first time that the Court of Appeal has been called upon to decide on the correct approach to the revised version of CPR 3.9 which came into force on 1 April 2013 to give effect to the reforms recommended by Sir Rupert Jackson. The question at the heart of the appeal is: how strictly should the courts now enforce compliance with rules, practice directions and court orders? The traditional approach of our civil courts on the whole was to excuse non-compliance if any prejudice caused to the other party could be remedied (usually by an appropriate order for costs). The Woolf reforms attempted to encourage the courts to adopt a less indulgent approach. In his Review of Civil Litigation Costs, Sir Rupert concluded that a still tougher and less forgiving approach was required. His recommendations were incorporated into the Civil Procedure Rules."
The Appeal Court took a robust line. Lord Dyson concluded by saying: "
- ...... The defaults by the claimant's solicitors were not minor or trivial and there was no good excuse for them. They resulted in an abortive costs budgeting hearing and an adjournment which had serious consequences for other litigants. Although it seems harsh in the individual case of Mr Mitchell's claim, if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback.
- In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past.
The warning from the Mitchell case could hardly be clearer. Procedure is important and failure to comply may have serious consequences for both client and professional reputation. (Just one though however. Will the rigour of Mitchell be applied to litigants in person? We shall see).
See also M A Lloyd Ltd v PPC International Ltd [2014] EWHC 41 (QB) - Turner J - "This case provides yet another example of a litigant treating an order of the court as if compliance were an optional indulgence"
Law Society - No relief from sanctions for breach of civil procedure rules
The book by John Sorabji (picture above) will be available from May 2014.
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