Litigants and their advisors now ignore procedural rules and
directions at their peril. That is the clear message coming from
the courts.
Most litigation in England is governed by the Civil Procedure
Rules ("the CPR"). These require cases to be dealt with
in accordance with what is known as the 'overriding
objective'. There are various aspects to this but,
amongst other things, judges are expected to exercise their case
management powers to ensure that cases progress in a manner that is
proportionate to the amount of money involved, the importance of
the case and the complexity of the issues and to ensure that cases
are dealt with expeditiously and fairly.
The CPR were introduced as long ago as 1998, but recent months
have demonstrated that judges are increasingly exercising their
muscles when it comes to case management.
The CPR specify that judges must further the overriding objective
by 'actively' managing cases. Active case management
involves a number of different things, but includes encouraging the
parties to use alternative dispute resolution procedures and fixing
time tables or otherwise controlling the progress of the case.
It is in the latter area where recent developments have
taken place. Various recent court decisions ably illustrate
this.
In Venulum Property Investments Ltd v Space Architecture Ltd the
claimant's solcitors served the claim form on the last day for
service without particulars of claim. They incorrectly
thought they had a further 14 days to do this. The court was
invited to exercise its discretion and extend time for service.
The judge refused the extension.
In Fons HF v Corporal Ltd the parties failed to exchange witness
statements in accordance with a time table laid down by the court.
The judge was prepared to give a very short extension of time
but it was a close run thing. The judge emphasised that
"all parties and the wider litigation world should be aware
that all courts at all levels are now required to take a much
stricter view of the failure...to comply with
directions."
More recently in Dass v Dass the defendant had failed to comply
with an order made some two years previously to serve expert
evidence by a particular date. It seems that the defendant
had done this, not just out of forgetfulness, but for tactical
reasons. The court made a case management decision debarring
the defendant from relying upon his expert evidence due to his
failure to serve it in compliance with the court order. The
defendant's appeal against this debarring order was dismissed.
The defendant tried to argue that there was no real prejudice
to the claimant arising out of the delay, as a trial date had not
been fixed and the claimant had only sought a debarring order just
before the case management conference at which the debarring order
was made. The court was not swayed by these submissions,
taking a view that the overriding interest of justice included
ensuring that orders of the court were respected and obeyed. This
stance has been harshly demonstrated by various recent Court of
Appeal decisions on committal of litigants held to be in contempt
for their failure to comply with order.
Another final example of this trend is the decision in Mitchell v
News Group Newspapers Ltd. This decision related to the
requirement for parties to prepare and submit costs budgets to the
court. These are now required in most cases so that the court
can attempt to limit the legal costs incurred by the parties.
In this case the claimant failed to file and exchange a costs
budget within the time specified in the CPR. As a consequence
the court said that, even if the claim is successful, the only
costs that the claimant can recover will be his court fees –
potentially an insignificant sum compared to his overall costs.
This result is likely to be challenged on appeal and leave to
appeal has been given but the initial decision shows the dramatic
impact of case management decisions.
Of course the idea of adhering to limitation periods and court
rules and directions is hardly rocket science but the highlighted
cases show how crucial it is to adopt a disciplined approach to the
preparation for and conduct of litigation.
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.
