UK: The Courts’ New Strict Approach To Complying With Rules And Orders

Summary and implications

Reforms to the Civil Procedure Rules (the Rules) brought into force on 1 April 2013, on the basis of Lord Justice Jackson's recommendations, include an amendment to the overriding objective. This now requires courts not just to deal with cases justly, but also expeditiously, at proportionate cost, enforcing compliance with the Rules, practice directions and orders, and allotting to each case an appropriate share of the court's resources.

Recent cases have demonstrated the courts' willingness to "get tough" on enforcing compliance with orders and the Rules. The changes mean that:

  • parties will need to comply with pre-action protocols, Rules and orders more rigidly than before;
  • non-compliance with directions, which is common in unopposed lease renewals in particular, may not be excused simply because the other party has also not complied. Where exchange of evidence is delayed by one party, the other should write to the court to explain the reason for the delay;
  • if it is not possible to comply with a deadline, parties should seek the court's consent to extend that deadline before it expires, rather than seek the court's compassion afterwards;
  • where one party is delaying, the other should consider applying to the court to impose a sanction, which may result in the party in default being barred from adducing evidence; and
  • once an order imposing a penalty for non-compliance has been ordered, courts will be less likely to permit relief from sanction.

A claimant who discontinues proceedings is usually liable for costs

In a recent Court of Appeal case,1 the issue before the court was whether to overturn a High Court decision ordering payment of the defendant's costs, following discontinuance by the claimants.

Rule 38.6(1) states that where a claimant discontinues, it is liable for the defendant's costs up to the date of discontinuance unless the court orders otherwise (the Default Costs Position).

The dispute concerned excavation works being carried out by the defendant within one metre of the claimants' property. The claimants believed that the defendant had failed to comply with the Party Wall etc. Act 1996 (the Act) and the defendant had refused to allow the claimants' surveyor to access and inspect the excavation site.

The claimants tried to engage with the defendant before issuing proceedings

The claimants sent four pre-action letters, which raised the issue of failure to comply with the Act and requested access for the claimants' surveyor to ascertain the condition of the wall bordering the claimants' property. The last letter threatened to issue proceedings for injunctive relief if the defendant did not give an undertaking within seven days to cease further development works until appropriate safeguards were put in place to protect the claimants' property.

The defendant failed to respond, therefore the claimants brought proceedings for injunctive relief and sought damages.

Eventually the parties agreed a party wall agreement and the claimant discontinued

After the defendant filed its defence, the parties negotiated a party wall agreement and the claimants served a notice of discontinuance and applied for their costs. The High Court ordered the claimants to pay the defendant's costs, on the basis of the Default Costs Position.

The defendant's failure to respond to pre-action correspondence justified a departure from the Default Costs Position

The Court of Appeal reversed the costs order against the claimants, and ordered that the defendant should pay the claimants' costs up to the date of the defence being filed, with no order for costs afterwards.

The defendant's failure to respond to the claimants' four pre-action letters left the claimants with no option but to issue proceedings. Failure to respond was so unreasonable, in the context of the claimants' perceived danger to their property, as to justify disapplying the Default Costs Position. Although the claimants' pre-action letters had not complied with the pre-action protocol exactly, the defendant had showed no willingness to set out his position, narrow the issues in dispute or discuss a settlement.

This decision highlights the importance of following the spirit of the pre-action protocols, including exchanging information and exploring the possibility of settlement.

Failure to comply with directions

In another case,2 the High Court almost refused both parties an extension to the deadline to exchange witness evidence, even though the claimant had just been waiting for the defendant to exchange.

The judge granted an extension only until the next day, and commented that "a failure to comply with a rule, direction or order is of itself a clear breach of the overriding objective and is likely to result in severe sanctions."

Similarly, in another case3 the High Court applied the Rules to refuse an application for an extension of time to serve particulars of claim on some of the parties to a multi-party action.

These cases highlight the need for parties to comply with deadlines, regardless of whether the other party is doing so, or seek the court's consent to amend those deadlines. It is also advisable to write to the court to explain the reason for non-compliance when it is the other party at fault, to create a paper trail to prevent sanctions being imposed.

Footnotes

1. Nelson's Yard Management Company and others v Eziefula [2013] EWCA Civ 235

2. Fons HF v Corporal Ltd and another [2013] EWHC 1278 (Ch)

3. Venulum Property Investments Ltd v Space Architecture Ltd and others [2013] EWHC 1242 (TCC)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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