UK: Case Management – The Pitfalls Of Non-Compliance

Last Updated: 17 October 2013
Article by Jade Campbell

Case management – The pitfalls of non-compliance

The Jackson reforms have implemented a number of fundamental changes to the UK civil litigation system. Consequently, the way in which claims are processed through the civil litigation system has been overhauled. These reforms have brought about, and will continue to bring, a number of amendments including significant changes in culture.

What's changed?

The changes require the courts to pay even closer attention to procedural failures and deal with such failures appropriately. The reforms require a more robust approach to the enforcement of compliance and a more restrictive approach to relief from sanctions. Following 1st April 2013 the courts have been more ready to make tough case management decisions and less willing to grant relief from sanctions in the event of a breach. In the months since the implementation of the Jackson reforms, the desired effect of the case management modifications appear to be coming to fruition.

Lord Justice Jackson's intention was to implement a change in the courts' culture. The Jackson Report concluded there was a requirement for a more robust and pro-active approach to case management.  One of his recommendations was that "the courts should be less tolerant than hitherto of unjustified delays and breaches of orders". His intention is clear: if the courts are less accepting of breaches by parties of court rules and orders, this will ultimately reduce costs and delays.

The overriding objective has been amended and now provides that the "Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost." The intention is for the addition "at proportionate cost" to strengthen the overriding objective. The issue of proportionality is now on the same footing as dealing with cases justly and is something parties should have in mind from the outset. The new rules bring about a welcome change for parties who run their cases efficiently. For parties who are less efficient and less organised, the amendments to the rules should prompt enhanced compliance.

CPR r3.9(1) now provides that:

On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as 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.

In the light of this amendment, it is clear that the courts will scrutinise more carefully any application for relief from sanctions and will be more strict in its approach. This amendment is intended to herald more compliance with all aspects of civil procedure.

Case management case law

Prior to the amendments to the CPR, Lord Justice Jackson gave a warning in Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd that "litigants who substantially disregard court orders or requirements of the CPR will receive significantly less indulgence than they have to date".1 The approach adopted by the court in Fred Perry has since been endorsed in subsequent, post Jackson reform, cases which emphasise that non-compliance with court orders, directions and rules must come to an end. 

In Baker v Hallam Estates Ltd the Queen's Bench Division judge found that the master had erred in refusing to set aside an extension of time.2 In an earlier hearing, the judgment had been given in favour of the defendant and costs awarded against the claimant. On 18 April 2013, the defendant served a notice of commencement of assessment of bill of costs, together with a deadline for  points of dispute for 14 May 2013. On 14 May, the claimant made an ex parte application for an extension of time. The application was not issued until the following day which was outside the 21-day time limit. On 15 May, the defendant requested that a default costs certificate be issued. Once the defendant learnt of the extension of time it made an application to set aside the master's decision. The master refused the application to set aside, allowing the claimant to file points of dispute relating to the bill of costs on the basis that the extension of time was not unreasonable.

On an appeal by the defendant, the judge made plain that rules must be firmly and sensibly applied. He found that on an application for extension, an applicant had to be open and honest, offering full disclosure of material facts, particularly when the application was made ex-parte. The judge considered that the claimant had not, to a satisfactory degree, set out the history of the dispute and that the period for serving points of dispute was 21 days. The judge found that a party who does not serve his points of dispute within the time limit may not be heard further in the detailed assessment proceedings unless permission to extend is granted

In the circumstances, the judge on appeal found that the order could not stand. He held that the claimant had failed to meet the deadline for serving points of dispute and accordingly those points of dispute could not be heard unless an extension of time was granted. The judge found that the master had been misled and was not aware of the full facts - had he known the facts as they were, it was unlikely that he would have granted the extension.

The court in Baker found that there is now "much greater emphasis on compliance in all areas of the court's affairs in each division. Procedural rules and time limits are not advisory. They demand compliance. There is no slide side rule available to be adjusted at will." The judge made plain that rules must be firmly and sensibly applied. Baker provides that there must now be a scrupulous examination upon applications for extension of time when there has been non-compliance. Parties who wait till "the 59th minute of the eleventh hour" are likely to be penalised by the court should something go wrong.

Case management has been inextricably joined with costs management. From 1st April it is more difficult to obtain relief from the court when deadlines have been missed. The Jackson reforms encourage judges to take a more active role in managing cases. It  and it is for this reason that judges are now less tolerant of unjustified delays and breaches of court orders. A failure to comply with a rule, direction or order is of itself a breach of the overriding objective and is likely to result in severe sanctions.

In view of the amended rules and the case law that has followed, it is plain that Lord Justice Jackson's intention to bring about a change of culture, where parties' breaches of court orders are no longer tolerated in quite the same fashion as they have been in the past, has been endorsed by the courts. The courts have demonstrated that where parties find themselves in default they will no longer tolerate excuses for non-compliance, will be much harsher in their approach to granting relief from sanctions and will scrutinise extension applications more rigorously. The ultimate result of the reforms should be to better enable litigation to be conducted consistently with proportionality.

Practical points

  • Whilst the Jackson reforms comprise significant changes to civil procedure it remains to be seen precisely what impact the amendments will have on the civil courts. Parties conducting litigation must now be extra vigilant to ensure compliance or otherwise risk severe sanctions.
  • It is therefore for parties to ensure that time limits set by the court in respect of procedural aspects of the case are strictly adhered to and complied with. The message is clear: Where it is not possible for parties to comply with court orders it is best to apply for an extension of time before the deadline expires rather than requesting an extension after the deadline has passed. The result of the reforms should be to better enable litigation to be conducted consistently with proportionality. or otherwise risk severe sanctions.
  • When making an ex parte application, be sure to offer open, honest and full disclosure of material facts so that a judge or master may make an informed decision.
  • Avoid making late applications on a without prejudice basis relating to time limits. Apply for an extension of time before the deadline expires.

Footnote

1 The High Court decision in Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd [2012] EWCA Civ 224 is available at http://www.bailii.org/ew/cases/EWCA/Civ/2012/224.html.

2 Baker v Hallam Estates Ltd [2013] EWHC 2668 (QB)

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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