Justice delayed – forget it

Lawyers should brace themselves for a court clampdown on non-compliance with procedure rules

Edward Lewis & Jennie Gillies

The updated civil procedure rules (CPR) amend the overriding objective: when dealing with a case justly the courts are now required to consider the need to enforce compliance with rules, practice directions and orders (CPR 1.1(2)(f)).

So does this change herald a  new no-nonsense attitude? The answer seems to be ‘yes’, given the recent decision in Venulum Property Investments Ltd v Space Architecture & Ors.

Venulum, a property developer, purchased land with planning permission for a scheme that proved impossible to build owing to structural problems. Venulum issued proceedings against 11 defendants including the vendor, project architects and estate agent, Millers, who had marketed the plot. However, Venulum delayed seeking legal advice and, despite issuing a protective claim form in November 2012 (shortly before expiry of limitation), failed to serve particulars of claim within the prescribed four-month period thereafter. Venulum applied for the court’s permission to extend time for service. All defendants except Millers consented.

The court refused Venulum permission, putting an end to the claim against Millers. It was influenced by  Venulum’s delay in progressing the claim, the vague terms in which it was advanced and its poor prospects of success in contrast with
the theoretically stronger claims against the other defendants.

The judge noted, “It is not satisfactory or in the interests of justice to have claims brought in the closing weeks or months of a long limitation period. Delay is bad for justice. […] the court should adopt a stricter approach where a claimant has, seemingly through its own choosing, left the start of proceedings until the last minute.”

Despite the error in service having been made by Venulum’s solicitors, in light of its own delay it was tarred by that error – particularly its failure to explain the delay.

Practitioners obviously have no control over when a client seeks help, but it is now clear that the courts will not offer any indulgence because of this and the standard expected of legal representatives is potentially greater when faced with a late instruction. They cannot afford either to enter litigation unprepared, whether that relates to timekeeping, costs management or anything else. It is also now clear that courts will keep a close eye on compliance with rules, practice directions and orders and the overriding objective (sometimes thought previously to be a nebulous concept) suddenly has real teeth.

In February 2012 the Court of Appeal warned litigants that the courts’ tolerance of delays and non-compliance with orders had become too prevalent and the balance needed to be redressed (see Fred Perry v Brands Plaza Trading). 

We are operating in a much–altered litigation landscape and a renewed focus on efficient and proportionate litigation is paramount.

The flipside is that litigants can expect to persuade courts to adopt a robust approach to compliance with procedural obligations, making good the warning by Master of the Rolls Lord Dyson that they can no longer expect ‘indulgence’ if they fail to comply.