In its recent decision in Andrew Mitchell MP v News Group Newspapers Limited  EWCA Civ 1537 (27.11.13) (transcript at http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/andrew-mitchell-mp-news-group-newspapers-ltd-27112013.pdf) the Court of Appeal delivered its much anticipated guidance on how the Courts should and will interpret the amended versions of CPRs 1.1 (2) (f) & 3.9 in the ‘post Jackson’ era. When it did, the message that it delivered was crystal clear; from now on, breaches of rules, practice directions and orders are unlikely to attract relief save in cases of trivial breaches when applications for relief are made promptly (para 40 of the judgment). Trivial can mean different things to different people but in this context it is likely to be interpreted as:
- A failure of form rather than substance.
- Where a party has narrowly missed a deadline but otherwise fully complied with its terms.
The Court anticipated that the question of whether a default is “insignificant” or “trivial” is likely to be a fertile battle ground for applications. However that is inevitable.
Other cases, presumably of what will become to be known as “significant’ breaches, will henceforth present applicants with a daunting test:
1. The burden is on the defaulting party to persuade the court to grant relief.
2. The court will want to consider why the default occurred.
3. If there is a “good reason” then the court will be likely to decide that relief should be granted.
Again, the meaning of “good reason” is likely to entertain Masters and District Judges for years to come, but the Court of Appeal did offer some further guidance; If a document is not filed at court because the party or their solicitor suffered from a debilitating illness or was involved in an accident. Depending on the circumstances this may constitute a good reason. Also, later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period appeared reasonable at the time and could not realistically have been the subject of an appeal.
The Court was keen to point out that a solicitor’s debilitating work load will not be a good reason and stressed that applications for an extension of time to meet a deadline will be viewed far more favourably than applications for relief post breach. It went on to say that “good reasons” are likely to be those which are outside the control of the defaulting party and that well intentioned incompetence on the part of the solicitor will not attract sympathy. An inadvertent mistake did attract relief in the pre Mitchell case of Wyche c Careforce, but it is unclear as to whether or not that excuse will survive Mitchell. Don’t count on it!
The Court encouraged the adoption of the same approach that the Courts take in assessing applications for extensions of time to serve claim forms. Hashtroodi v Hancock  EWCA Civ 652 at para 19 offers perhaps the neatest expression of this test.
The decided cases on the new CPR 3.9 prior to the Mitchell decision (including Biffa Waste v Ali Dinler & Ors (2013) LTL 10/10/2013, Fred Perry (Holdings) Limited v Brands Plaza Trading Ltd (t/a Brands Plaza)  EWCA Civ 224, Rayyan Al Iraq Co Ltd v Trans Victory Marine Inc QBD 23/08/13 and Wyche v Careforce Group Plc (2013)QBD (Comm) 25/07/2013) had nearly all contained discussion on the relevance of the old 3.9 criteria to applications. The Court of Appeal cleared all this up once and for all; the old criteria can be considered, but they are incidental to the new 3.9 criteria which are, of course, far simpler and intended to produce an far more robust test than was the case previously.
“We recognise that CPR 3.9 requires the court to consider “all the circumstances of the case, so as to enable it to deal justly with the application”. The reference to dealing with the application “justly” is a reference back to the definition of the “overriding objective”. This definition includes ensuring that the parties are on an equal footing and that a case is dealt with expeditiously and fairly as well as enforcing compliance with rules, practice directions and orders. The reference to “all the circumstances of the case” in CPR 3.9 might suggest that a broad approach should be adopted. We accept that regard should be had to all the circumstances of the case. That is what the rule says. But (subject to the guidance that we give below) the other circumstances should be given less weight than the two considerations which are specifically mentioned.”
Comparing this to the new wording of CPR 1.1 (2) (f) and 3.9:
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.
“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.”
All this, together with the pre-reforms comments of Jackson LJ in Fred Perry and Lord Dyson MR in the 18th Implementation Lecture ‘The application of the amendments to The Civil Procedure Rules’ paras 25-27, suggest that the decision in Mitchell was inevitable and entirely consistent with the rationale behind the recent reforms.
In short, the message is clear; failure to comply with court rules is now likely to result in very serious consequences for solicitors and their clients.
This, and its wider implications are well illustrated by the outcome of an application to strike out a claimant’s claim that I appeared in early last week at Chichester County Court. My client applied to strike out the claimant’s claim as an abuse of process. In a previous action brought by my client against the claimant, the defence and counterclaim were struck out for failure to comply with an unless order. The defendant and his solicitors adopted a rather blasé attitude to this and simply issued a ‘fresh’ claim which they admitted was exactly the same claim as the struck out counterclaim. I advised that an application to strike out the ‘fresh’ claim as an abuse would be on even more fertile ground in the ‘post Jackson’ era as the ‘fresh’ claimant was using his ‘fresh’ claim in part to avoid the now much harder test to achieve relief from sanction, and that that could in itself amount to an abuse of process, in addition to the usual abuse criteria applied in these situations as set out in Securum Finance v Ashton & Anor.  Ch. 291. We made the application and the District Judge (who knew the Mitchell judgment almost off by heart) agreed, relying heavily on my arguments based on the Mitchell decision in his judgment.
The message is simple; know your deadlines and meet them. If there is a chance that you will not, seek to obtain extra time. Otherwise, put your tin hat on because that ton of bricks will soon follow.