Social Welfare Lawyers in the Centre of Birmingham

Case Law on Compliance with Directions (Post Mitchell Update)

Following the case of Mitchell v News Group, the Courts have taken a very strict view indeed to failure to comply with Court directions. This appears to be loosening somewhat.

Firstly we would refer the reader to the article on the Nearly Legal Housing Law Website – This is what we always meant and especially the piece concerning the amendments to the Civil Procedure Rules on 5th June 2014 – see the article at:-

The piece on Nearly Legal also refers to the Judgment of Jackson LJ (yes, that Jackson!) in Hallam Estates Limited v Baker [2014] EWCA Civ 661. In terms of the amendment to the Civil Procedure Rules, Rule 3.8 (4) will now read:-

(4) In the circumstances referred to in paragraph (3) and unless the Court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.

Groarke -v- Fontaine

Additionally in a case not mentioned in the Nearly Legal piece, Groarke v Fontaine [2014] EWHC 1676 (QB), 22 May 2014, concerning a road traffic accident and the question of potential contributory negligence by the Claimant, the Defendant made a very late application (at the outset of the trial!) to amend his Defence. This was initially refused but Sir David Eady sitting as a High Court Judge allowed the Defendant’s appeal, stating:-

The District Judge (like myself) was doing his best to apply the relevant principles, as expounded in the recent authorities, to the facts of this case. Having considered his reasons, however, my own respectful conclusion is that in examining the trees he ultimately failed to see the wood. Insofar as he balanced the potential prejudice to the Claimant against that to the Defendant, the exercise yielded the wrong outcome. I believe that justice and fairness required that the amendment should have been allowed so that ‘the real dispute’ between the parties could be adjudicated upon. It is true that the burden was on the Defendant to establish not only that this objective was desirable but also that it should, in the particular circumstances, prevail. I can see, however, no good reason why it should not. There was no countervailing prejudice to the Claimant. In particular there was no need for any adjournment, any further delay or additional cost. The court was able to accommodate the issues of causation (including those relevant to contribution) on the appointed trial date and (whether it was appropriate to do so or not) the District Judge actually stated what his conclusion would have been on contributory negligence. Thus no court time would have been wasted or court resources diverted. Correspondingly, no other court users would have been inconvenienced. The only concrete result of the District Judge’s refusal was that, at least on his (obiter) finding, the Claimant was to gain a windfall payment unjustly (para 32).

See: Groarke -v- Fontaine Judgment

Denton -v- T H White Limited and Others

Further to the case of Groarke v Fontaine, the Court of Appeal have addressed this matter again and sought to give a definitive ruling on the issue in the case of Denton v T H White Limited and Others [2014] EWCA Civ 906. This case involved three appeals (all heard together) against refusal to grant sanctions by parties who had failed to comply with Court directions. The Master of the Rolls and LJ Vos (giving the Judgment of the Court of Appeal) stated as follows:-

24…We hope that what follows will avoid the need in future to resort to the earlier authorities.

25. The first stage is to identify and assess the seriousness or significance of the ‘failure to comply with any rule, practice direction or court order’ which engages rule 3.9 (1)…

26…In these circumstances, we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant….

27…At the first stage, the court should concentrate on an assessment of the seriousness and significance of the very breach in respect of which relief from sanctions is sought. We accept that the court may wish to take into account, as one of the relevant circumstances of the case, the defaulter’s previous conduct in the litigation (for example, if the breach is the latest in a series of failures to comply with orders concerning, say, the service of witness statements). We consider that this is better done at the third stage…rather than as part of the assessment of seriousness or significance of the breach.

28. If a judge concludes that a breach is not serious or significant, then relief from sanctions will usually be granted and it will usually be unnecessary to spend much time on the second or third stages. If, however, the court decides that the breach is serious or significant, then the second and third stages assume greater importance.

29. The second stage cannot be derived from the express wording of rule 3.9 (1), but it is nonetheless important particularly where the breach is serious or significant. The court should consider why the failure or default occurred: this is what the court said in Mitchell at para 41.

30. It would be inappropriate to produce an encyclopaedia of good and bad reasons for a failure to comply with rules, practice directions or court orders…

31. The important misunderstanding that has occurred is that, if (i) there is a non-trivial (now serious or significant) breach and (ii) there is no good reason for the breach, the application for relief from sanctions will automatically fail…rule 3.9 (1) requires that, in every case, the court will consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’….

32…Although the two factors may not be of paramount importance, we reassert that they are of particular importance and should be given particular weight at the third stage when all the circumstances of the case are considered. That is why they were singled out for mentioning in the rules. It is striking that factor (a) is in substance included in the definition of the overriding objective in rule 1.1 (2) of enabling the court to deal with cases justly; and factor (b) is included in the definition of the overriding objective in identical language at rule 1.1 (2) (f)…

34. Factor (a) makes it clear that the court must consider the effect of the breach in every case. If the breach has prevented the court or the parties from conducting the litigation (or other litigation) efficiently and at proportionate cost, that will be a factor weighing in favour of refusing relief. Factor (b) emphasises the importance of complying with rules, practice directions and orders. This aspect received insufficient attention in the past. The court must always bear in mind the need for compliance with rules, practice directions and orders, because the old lax culture of non-compliance is no longer tolerated.

35. Thus the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it 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….

38. It seems that some judges are approaching applications for relief on the basis that, unless a default can be characterised as trivial or there is a good reason for it, they are bound to refuse relief. This is leading to decisions which are manifestly unjust and disproportionate. It is not the correct approach and is not mandated by what the court said in Mitchell…

40…Nor should it be overlooked that CPR rule 1.3 provides that ‘the parties are required to help the court to further the overriding objective’. Parties who opportunistically and unreasonably oppose applications for relief from sanctions take up court time and act in breach of this obligation.

41…The 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).

Lord Justice Jackson, whilst arriving at the same conclusion in all the three cases, came to that conclusion in a slightly different way (just to continue the complication of matters). He stated:-

85. I take a somewhat different view, however, in relation to the third stage. Rule 3.9 requires the court to consider all the circumstances of the case as well as factor (a) and factor (b). The rule does not require that factor (a) or factor (b) be given greater weight than other considerations.

We wait to see whether this attempt to clarify the issues really has achieved that objective.

See: Denton -v- T H White Limited & Others Judgment