At the Court’s mercy; Court Gets Tough

12 months ago in the case of Mitchell -v- New Group Newspapers Limited [2013] EWCA Civ 1537 the Court took a hard hitting approach to non-compliance with the Civil Procedure Rules.   It has become clear that this approach to non-compliance with Court Orders is being taken very seriously by the Court. The decisions in the last 12 months highlight that the Court will no longer rubber stamp applications for extensions of time even if agreed between the parties.   The Jackson reforms have concentrated the minds of the Judges to compliance with Court Orders over the need for parties to take a pragmatic and cooperative approach to conducting litigation.

 It is now necessary to consider making applications to the Court promptly, so as to avoid falling foul of the Court refusing to provide relief from sanctions after the deadline has passed.  Successful applications require that the breach is not simply trivial;  it is a matter for the Court to decide and determine what constitutes as trivial.  There must be a good reason for the application and the application should be made promptly.

In the case of Durrant -v- CC of Avon and Somerset [2013] EWCA Civ 1624 witness evidence was served 21 hours late.  The Judge in the first instance granted relief from sanctions however the Court of Appeal overturned this decision and relief was not given.   This case must be considered on the specific facts as there had been a history of default; the Court noted that this delay was not an unforeseeable event.  It seems the Court would have been more sympathetic to an application prior to the passing of the deadline for a time extension rather than an application for relief from sanctions.

In the case of Kagalovsky -v- Balmore Investment [2014] EWCA 108 an application was made for an extension of time prior to the deadline but the time extension was refused on the basis that there was an absence of good reason for the time extension.  Again this decision must be reviewed on the specific facts of this case.  The appears to be a narrow decision specific to these facts although it was made clear by Justice Turner that the absence of good reason made it inappropriate to allow an extension of time.

Interestingly, in the case of MA Lloyd -v- PPC [2014] EWHC 41 (QB) the parties agreed a revised timetable for witness evidence and the Judge criticised the Defendant for being too timid.  It was stated that the Court has a duty to actively manage cases and not rubber stamp Consent Orders.  The focus of the Court to consider the overriding objective has now moved towards compliance of Court Orders.

In Adlington & 133 ors -v- Els International [2013] the failure of the Claimant was seen as trivial and the Court was quick to state that the failure was ‘trivial’, and of form and not substance.  This is not to say that compliance with the Rules post Mitchell is not at the forefront of the Court’s mind, as this decision highlights that while the Court is getting tougher, in some instances the Court still may take a pragmatic view.

The ripples of Mitchell can be well felt in the last 12 months through the variety of decisions made by the Court.  Every breach of every Rule or Order is now a potential trip wire.  In particular litigants in person who were once over indulged by the Court are now finding that the Court is taking a much less sympathetic approach.  The failure to comply with Court Orders will not be looked upon favourably and being a litigant in person is not a sufficient excuse for missing Court deadlines.

 The Court is becoming even more conscious of the need to ensure that cases are dealt with at a proportionate cost and appropriate allocation of Court resources.  Judges are now weighing up the overriding objective, proportionality, expedition and fairness in light of delays and non compliance of Orders.  It seems however that compliance with Court Orders take primacy.   The potential consequences of delays and missing deadlines can now be disastrous for a case and therefore if you are required to provide instructions you should not delay or you may find yourself at the mercy of the Court.