We expected a bracing new regime post Jackson. Following the Court of Appeal decisions in Mitchell and Durrant, we seemed to have got it.
Whether they liked it or not, and some seemed not to, those administering case-management justice up and down the country were encouraged to deal toughly with even minor breaches of procedure and time limits.
The presumption of relief from sanction had shifted. There were predictably cries of ‘foul’ from those who were, or felt they might have been, victims of the new approach. Those lawyers who had got used to a ‘just in time’ (or even a ‘just out of time’) practice felt exposed and found the new regime ‘unfair’ and ‘oppressive’. Those on the other side of a dispute could sit like hawks waiting to pounce and strike the moment that a deadline had expired, expecting the courts to show little sympathy to their victims.
At first blush it is hard to elicit much sympathy for those who struggle to comply with the rules. After all they were well-publicised in advance and legal commentary was full of dire warnings about the new approach which was coming. With electronic diary systems and prompts, it should not be impossible to take steps on time. Sudden absences, shortage of staff, work spikes and client demands are all part of modern legal life and urgency is the order of the day in most areas of the 21st century solicitors’ office. Aren’t they? Well, up to a point.
It is easy to forget that the litigation process involves three sets of principals – lawyers, clients and the courts. All have their part to play in the new order. So how are they responding to change?
For us to meet the disciplines of Jackson, we need co-operation from those who instruct us. Prompt and accurate responses on facts, opinions and budgets are all vital if we are to comply with the rules. What steps have we taken to tell clients about Jackson, to explain the new efficiencies, to emphasise the obligations of the solicitor/client relationship in litigation as well as its benefits? How many clients actually understand what we do, when and why? Moments spent on enlightenment can save both time and tempers later on.
And how are the courts themselves responding to the Jackson pressures? Individual staff do their best to be helpful but it is all too frequent that an order takes weeks to perfect, papers are in the wrong place (or lost), judges are not given documents and the zeal and efficiency of clients and lawyers is stymied by glitches which would provoke opprobrium if committed by the solicitors. Is it any wonder that the pressure levels rise? Can anyone say with hand on heart that the system operates more smoothly and effectively than before?
The new costs budgeting regime with its emphasis on proportionality should be leading to a greater focus on what is necessary to get the job done. It may be just be old habits, or a sense of frustration at the current state of play, but counter-intuitively has there not been a growth in purely aggressive correspondence, full of sound and fury and signifying nothing? There are welcome signs that such empty messaging will more often be penalised in costs, but there is still a way to go.
So, now we have a ‘recalibration’ of the court’s approach, set out in the Court of Appeal’s linked decisions in Denton, Decadent Vapours and Utilise TDS. The so-called “triviality test” is modified to focus on whether the infraction is a “serious and significant” one. If the failure is not serious or significant, relief should normally be granted. If it is serious or significant, but the defaulter had good justification for the breach, relief should follow. If there was no justification advanced, the court will look at all the circumstances of the case to deal with the application for relief justly. The majority of the court (but interestingly not Jackson LJ) thought that the specific factors highlighted in rule 3.9 (“efficiently and at proportionate cost” and aiming to “enforce compliance with the rules, practice directions and orders”) should be given pre-eminent weight. So far, so good then.
Mitchell was undoubtedly draconian, but people knew where they stood. Now, the doors seem to have been opened to a raft of nuanced challenges which might succeed or not. The Court of Appeal cannily saw this coming and stressed that there should be no allowance for opportunism. Except where there are significant or serious breaches without good reason, the parties should agree a way forward or face penalties on costs. This is a clear attempt to head off much satellite litigation at the pass. It is therefore to be welcomed. But, how does one advise a client who sees his opponent fail to comply with an ordered time limit? There is a balancing act between taking steps which, if successful, will shortcut the case and the client’s costs, but which, if they fail, will penalise the “innocent” client for his opponent’s shortcomings. How will our client (to whom we have stressed the importance of timely compliance with his own deadlines) react to us advising him that he should acquiesce in his opponent’s failure to do likewise? Some difficult conversations no doubt loom.
The courts may have successfully shifted the issue away from themselves; whether they have dealt with it in practice remains to be seen.
Guy Harvey, partner and head of disputes (London), Shepherd & Wedderburn