English Civil Litigation, Case Management & Sanctions
Sanctions for failure to comply with rules, practice direction and court orders on case management can be drastic or out and out catastrophic – a lively topic for Italians, involved in English litigation, to be informed about, as their own civil procedure culture is very different, and in which adjournments and an unfettered right to appeal make English norms quite alien.
An Italian litigant in England needs to absorb the following principles and accept them, otherwise he risks walking into a minefield.
The English court can strike out a party’s statement of case where that party is not compliant with a rule, practice, direction or order CPR r 3.4(2)(c).
There is a recently revised civil procedure rule CPR r 3.9 which provides
1. 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.
2. An application for relief must be supported by evidence.
English practitioners in contentious matters have been sobered by the hard decision in the case of Mitchell v News Group Newspapers Ltd EWCA Civ 1537. This decision made in respect of a failure of lawyers to file a costs’ budget – the opportunity to claim costs was effectively lost at the outset of the litigation by the failure to submit the costs’ budget – is the touchstone for legal advisers and their clients in understanding the attitude of the courts to failure by a party to adhere strictly and accurately to the requirements of case management set out in the rules, practice directions, and the tailored orders of the court in the individual case.
To be in the position of needing to beg for the court’s mercy is something to be avoided, as indulgence is not to be presumed on.
Lord Justice Jackson who instigated the reform wants value for money, efficient litigation: effective case management is at the core of this aim. The merits of the case are not decided at the case management stage, and a party unseated from the judgment seat will find it most hard to persuade a court, that because it says it would have won that there should be relief. Parties who underestimate the strict need to adhere to the purpose of the Jackson reforms will simply be annihilated, where their non-compliance with proper case management
(1) is more than trivial – any non-compliance that is of substance rather than form e.g. filing and serving a document late is an omission of substance rather than form, if the non-compliance is anything worse than a narrow missing of a deadline to carry out a particular case management direction, where the party in default has otherwise been timeous and exact in carrying out its duties.
(2) unless, there is a good excuse e.g. ill-health of the party or its lawyer, or involvement in an accident. In other words, a good excuse is likely to be one that demonstrates default was beyond the control of the non-compliant party; an excuse based on issues such as workload, other business commitments whether of the party or its lawyers is unlikely to cut much ice with the Court – parties to litigation must make the litigation their first priority, if they are intent on pursuing their case, and their lawyers must have a firm mastery of their professional diary;
(3) unless a case management direction turns out, in the course of the litigation, to have been unrealistic and unreasonable as to its timing or perhaps implementation, especially if a timely application to vary the direction before time for compliance expires is made, in which case the non-compliant party may attract the court’s mercy – however litigation is not supposed to be left to slide ineffectively out of close control, and timely applications to vary are essential.
(4) Deliberate ignoring of a case management obligation will usually be impossible to justify; an act of carelessness, which does not upset the Court timetable or the other side’s preparation of the case is less likely to be totally unamenable to a discretionary act of mercy on the part of the court, though Mitchell limits the ambit of this mercy enormously. Carelessness can have grave consequences on other court users through loss of trial dates, cluttering of the judicial diary – NB every case is fact specific, in terms of the judicial perception of a party’s conduct; weak excuses of the type “I didn’t mean to become non-compliant” may be the subject of stringent criticism. There is no place for nonchalance in dealing with case management issues, precision is required.
Where non-compliance is in relation to an Unless Order (which should only be made after a history of cavalier attitude on the part of one or other of the parties to the litigation has emerged) it will usually be most difficult to invoke circumstances that will gain relief from the Court. An Unless Order is an order that tells a party in clear and certain terms that it must comply with specified directions or face the stated consequences.
In the light of the Mitchell case, the safer course is to comply with all case management obligations as though they were unless orders.
Legal Representatives need to be given timely instructions so that they can comply on their clients’ behalf with all case management obligations. A lay party that does not take this on board risks catastrophe, and in that event no criticism attaches to their lawyers.
The failings of lawyers to understand case management directions will not usually excuse their clients from the duty to comply. A party will not be excused usually for the failings of its lawyers.
A litigant in person may obtain relief from sanctions more readily than where lawyers are instructed. But any litigant in person should actively consider whether he or she is up to the mark to conduct litigation, because should his inexperience lead him into “non-trivial” non-compliance with case management directions and the court nevertheless gives him relief – and this is no foregone conclusion – the terms of that relief may well be expensive. The justice of the case is always fact specific.
The Courts look at all the circumstances in deciding the question of relief from sanction, far better never to have to seek the court’s discretionary relief or mercy.
This article does not intend to be exhaustive but to be cautionary and give Italian litigant readers, and ideally others, a hint at the problems that the Jackson reforms can cause them, as the English litigation “climate” is so very different from the Italian.
This article is a summary of recent developments and, whilst every care has been taken to ensure the accuracy of the information provided, it should not be regarded as a substitute for advice in any particular case. Every case is different and you must not act solely on the basis of information contained here. BILA and the article’s author make no warranties as to the accuracy of the information contained in the article and are not responsible for the content of external websites. Where opinions have been expressed, they are the personal opinions of the author and do not constitute professional advice on any level, nor do they represent the opinions of BILA.