UK: Has The Post-Mitchell Era Of "Zero Tolerance" Ended? The Court Of Appeal’s Recent Decisions In Denton, Hallam And The New "Buffer Rule"

Last Updated: 11 August 2014
Article by Neil Jamieson

In a short space of time, we have come a long way since the now infamous decision of Mitchell v News Group Newspapers (2013) where Master McCloud assertively decided to limit a party's costs recovery to court fees as a penalty for filing its costs budget 6 days late.

The decision was bold but was firmly endorsed by the Court of Appeal. Although the decision was welcome in driving through a new culture of efficiency and rule compliance, it had some unfortunate side effects. First, it resulted in uncooperative behaviour between litigants. Litigants took the view that, strategically, it would be unwise to condone an opponent's breach of, for example, a time limit, if (applying Mitchell) the court is likely to penalise it (which would invariably assist the non-breaching party). Secondly, it resulted in a raft of applications by the breaching party for relief from sanctions as well as, where necessary, an extension of time to complete the relevant step. These applications had to be listed and parties' opposing submissions heard. A raft of satellite litigation with the associated wastage of costs and court time was the result.

Many such applications were reported but no consistent approach to how Mitchell should be applied in practice was taken. Some courts took an overly zealous approach and severely penalised minor breaches, whereas other decisions took a "merit based" approach resulting in overly lax decisions that did not foster and encourage rule compliance. Thankfully, there have been some recent, important developments which should resolve these problems:

  1. The Court of Appeal, on 4 July, to the undoubted relief of litigants and their representatives, issued a decision intended to clarify and expand upon Mitchell, in three conjoined appeals (collectively "Denton"): Denton & Ors v White & Ors; Decadent Vapours Ltd v Bevan & Ors; Utilise TDS Ltd v Cranstoun Davies & Ors [2014], (described in more detail below).
  2. To reduce satellite litigation, the Civil Procedure Rules Committee drove through a new "Buffer Rule" (in force since 5 June) allowing parties to agree 28-day time extensions without having to seek the court's permission. This supersedes the old CPR 3.8 which provided that where a rule, practice direction or court order requires a party to do something within a specified time and specifies the consequences of failure to comply, the parties must seek the court's permission to extend the deadline. From 5 June, in such circumstances, the parties may, by prior written agreement, agree to extend the deadline in question without having to seek court permission by up to a maximum of 28 days, provided no hearing date is jeopardised as a result.
  3. 3. The Court of Appeal's decision on 19 May in Hallam Estates Ltd v Baker (2014) clarified that the Mitchell criteria, which applied to applications for relief from sanctions, did not apply to applications for extensions of time made before the relevant deadline expired (even if the hearing of the application occurred after the deadline expired). The decision emphasised that parties have a duty, under CPR 1.3 to further the overriding objective, which included allotting an appropriate share of the court's resources to an individual case. As such, legal representatives must make efforts to agree to reasonable extensions of time which neither imperil future hearing dates nor otherwise disrupt the conduct of the litigation. By avoiding the need for a contested application they were furthering the overriding objective and saving costs. Similarly, the Court of Appeal emphasised that the courts should not refuse to grant reasonable extensions of time.

The recent Court of Appeal's decision in Denton

In this decision on three conjoined appeals, one or other party had sought relief from sanctions arising, pursuant to CPR 3.9. The Court of Appeal was required to determine the correct approach to the rule and to the guidance given in Mitchell. The respective judges had purported to apply the Mitchell guidance, but in each case, the parties had been treated inconsistently. The Court of Appeal took this opportunity to clarify and explain the guidance given in Mitchell regarding the proper approach to be taken to relief from sanctions applications pursuant to CPR 3.9. It confirmed that, even with serious/significant breaches, which were without good reason, relief is not automatically to be denied. Rather, courts must consider "all the circumstances of the case" when deciding whether or not to grant relief, and in doing so, give factors (a) and (b) in CPR 3.9 particular weight.

The Court of Appeal observed that Mitchell had received criticism for having a "triviality" test which effectively amounted to an "exceptionality" test and for describing factors (a) and (b) in CPR 3.9(1) as "paramount considerations" and downplaying the requirement for the court to consider all the circumstances of the case. The Court also noted that some first instance judges were being unduly draconian in their approaches, and others too relaxed. Allowing all three appeals, the Court held that the guidance given in Mitchell remained substantially sound, but needed to be clarified to create a consistent judicial approach to the application of CPR 3.9, making it unnecessary to refer to earlier authorities in future and assisting in reducing the need for satellite litigation.

It decided that in future, judges should adopt a three-stage approach:

  1. First stage: they must identify and assess the seriousness or significance of the relevant failure. If a breach is not serious or significant, relief should usually be granted and there is no need to spend much time on the second and third stages;
  2. Second stage: The court had to consider why the failure or default occurred;
  3. The Third Stage: The court should consider all the circumstances of the case. A serious breach for no good reason is not automatically prevented from attracting relief. Factors (a) and (b) in CPR 3.9 remain of particular importance and should be given particular weight at the third stage when all the circumstances of the case are considered. In doing so, courts will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it. If the effect of a breach was to prevent the efficient and proportionate conduct of litigation, that would weigh against relief being granted. Likewise, the old lax culture of non-compliance with rules, practice directions and orders is no longer tolerated, and compliance has to be considered in every case. However, other factors would also be relevant and would vary on a case-by-case basis.

The Court added that "the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances. Likewise, other past or current breaches of the rules, practice directions and court orders by the parties may also be taken into account as a relevant circumstance."

The Court of Appeal again made clear its disapproval of uncooperative behaviour between litigants. It stated that "In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation."

The penalties for obstructive behaviour could be severe. The Court stated that: "Heavy costs sanctions imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case. If the offending party ultimately wins, the court may make a substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If the offending party ultimately loses, then its conduct may be a good reason to order it to pay indemnity costs. Such an order would free the winning party from the operation of CPR rule 3.18 in relation to its costs budget."

What does this mean for parties seeking extensions of time?

As a result of all the developments outlined, as far as extensions of time are concerned, the playing field is now more relaxed than it appeared in the period following Mitchell.

First, parties now have confirmation in Hallam Estates, that even if the deadline is looming, so long as they make an application before it expires, they needn't approach the application as if they were seeking relief from sanctions, even if the hearing of the application occurs after the deadline expires. Secondly, the Buffer Rule positively allows and effectively encourages parties to agree extensions of time between themselves of up to 28 days, without having to seek court permission, so long as hearing dates are not jeopardised.

Finally, in Denton, the Court of Appeal encouraged parties to cooperate and take a sensible approach to agreeing extensions of time. The Court referred to the new Buffer Rule stating, "parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new rule 3.8(4)" and emphasised that a dim view would be taken of litigants unreasonably refusing to agree extensions.

Key Points

  • Mitchell was upheld by the Court of Appeal in Denton, but has been substantially "clarified" to encourage a less zealous and more pragmatic approach under CPR 3.9, including a three stage test for applications for relief from sanctions
  • The three stage test means that courts must: (a) identify and assess the seriousness of the breach (b) identify why it occurred (c) consider all the circumstances of the case placing particular importance on factors (a) and (b) in CPR 3.9
  • Parties are encouraged to agree extensions of up to 28 days under the Buffer Rule without involving the court
  • Parties are advised to agree reasonable extensions of time wherever possible, even outside the buffer period
  • If an application for an extension of time is made prior to the expiry of a deadline, there is no need to apply for relief from sanctions even if the hearing of the application is heard afterwards
  • Uncooperative behaviour between litigants may be punished by the courts with costs penalties

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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