The time has come

LSLA president Francesca Kaye on the landmark costs battle being fought by Andrew Mitchell MP in a case that is set to define the Jackson reforms

The Jackson Reforms presaged a stricter, more procedurally rigid, approach to case management. The mantra “robust but fair” rang out across the court system. 

The robust but fair approach seemed at odds with the overriding objective of resolving cases justly, even if that had to be at proportionate cost. 

Early skirmishes inevitably have been around applications for relief from sanctions under CPR 3.9 as practitioners adjust to a stricter approach to compliance.

Initially the judicial response appeared to adhere rigidly to the robust but fair approach. In Venulum Property Investments Ltd v Space Architecture Ltd and others [2013] EWHC 1242 (TCC) Mr Justice Edwards Stuart, having carried out a balancing exercise to determine whether he should grant relief from sanctions, factored in the new stricter approach to non-compliance and refused relief from sanctions. 

However, some of the judiciary are taking a more flexible approach.  In Rayyan Al Iraq Co Ltd v Trans Victory Marine Inc [2013] EWHC 2696 (Comm) Mr Justice Andrew Smith noted the change in attitude did not mean relief from sanctions should be refused where it would be disproportionate to do so and/or give an unjustified windfall to the opponent.

“The application should have been dealt with at minimal expense on paper. The defendants’ attempt to exploit the error was regrettable,” he noted. Relief from sanctions was granted.
Against this background this week the Court of Appeal will consider the Mitchell v News Group Newspapers [2013] EWHC 2355 appeal.

Solicitors for Andrew Mitchell MP failed to file their costs budget until the day before the CMC and only then after being chased by the Master.  At the CMC there was no application for relief from sanctions.

The case was under the defamation pilot scheme so CPR 3.14 did not strictly apply but the Master imposed an equivalent sanction. Under this rule, unless the court orders otherwise, the sanction for not filing a costs budget is that the budget is deemed to comprise court fees only. 

Master McCloud handed down her judgment refusing the subsequent application for relief from sanctions on 1 August 2013.  Having carried out a balancing exercise, looking at the relative positions of the parties, her judgment reflected the new emphasis on “allocating a fair share of time to all as far as possible and requiring a strict compliance with rules and orders even if that means that justice can be done in the majority of cases but not all.”  She acknowledged this could provide a windfall for the defendant.

Despite the stricter approach to compliance overall and a consideration of costs and proportionality, at least in passing, the judiciary still approach each application on its facts exercising their discretion to grant relief if that meets the overriding objective of resolving cases justly. 

Superficially decisions appear similar to pre 1 April. However, the more wide-ranging balancing exercise that incorporates the new overriding objective for “robust but fair” decisions has subtly changed judicial decision-making. Perhaps in another 12 months there will be clearer evidence of this change of approach.

Until then the outcome of Mr Mitchell’s case will be awaited eagerly by all seeking guidance on the approach to applications for relief from sanctions in post-Jackson.

Francesca Kaye, president London Solicitors Litigation Association (LSLA) and partner, Russell-Cooke LLP