By Andrew Hipper
Compliance will be the watchword for 2014 and beyond. Adhere to deadlines/court timetables and all should be fine. Miss a deadline and you are in stormy seas. The cases that follow Mitchell v Newsgroup provide little comfort for errant lawyers. Persuading a judge that a default is trivial or arose for good reason will be uncomfortable and difficult.
While inconsistency remains, courts have seized the initiative and relief from sanction is being refused up and down the land. In our experience, judicial interpretation of what is ‘trivial’ varies considerably and even modest delays are being sanctioned (41 minutes in one case).
Refusal to grant relief from sanction may not stop a claim in its tracks but it inevitably creates immense difficulties for solicitors, their clients and, ultimately, their insurers. Solicitors need to be wary and apply to the court before an unavoidable default. Tactical decisions to take issues rest with opposing parties. It is easy to envisage litigators ‘taking points’ with Jackson to support their cause. The environment to do so is benign. Neither party will feel confident about the position a court will take. Next time the opponents may be in the firing line…
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