As part of his wide ranging review of civil procedure in England and Wales, Lord Justice Jackson considered the failure of litigants to abide by deadlines, either imposed by rules, practice direction or court order. In his interim report at 43.4.20 to 43.4.21, the Lord Justice noted that there were various suggestions for “re-establishing due respect for deadlines set out in the CPR or imposed by way of direction”. One of those suggestions included “a declared change of judicial policy that as from a stated date, say 1st January 2010, non-compliance with deadlines or due dates would no longer be tolerated, save in exceptional circumstances. ... This may rapidly lead to a tightening up of practice on the part of all litigators, for the benefit of civil litigation generally.” The point was repeated in the final report at 39.6.5 upon the Lord Justice concluding that “... courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system. The balance therefore needs to be redressed.”
With effect from 1 April 2013, CPR 3.9 was amended to provide that “(1) 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.” It has been argued by commentators that this revision to CPR 3.9 heralds a seismic shift in the approach of courts to applications for relief from sanction, such applications to be refused in all but the most exceptional of cases. Certainly, some of the cases preceding 1 April 2013 had suggested as much (for example Fred Perry Holdings Limited v Brands Plaza Trading Limited  EWCA Civ 224).
However, this may be too stringent an interpretation. At 43.4.21 of the preliminary report, Lord Justice Jackson himself noted “This is not a reform which I am positively advocating, because of the hardship which it would cause to individual litigants and lawyers”. At 39.6.5 of the final report he repeated the caveat: “I do not advocate the extreme course which was canvassed as one possibility in PR paragraph 43.4.21 or any approach of that nature.”
The Thevarajah case had proceeded in quite devastating fashion. Within the confines of ancillary proceedings to a substantial contractual dispute, the claimant asserted that the defendants had failed to comply with various orders for disclosure. An unless order was made requiring compliant disclosure in default of which the defendants’ defence would be struck out and a debarring order made. Despite further disclosure being proffered, the claimant asserted that satisfactory compliance remained outstanding. In due course, the sanctions contained within the unless order were given effect. At this point Moon Beever was instructed, filed a notice of change, and made an application for relief from sanction under the restated CPR 3.9.
At the hearing of the matter during the week commencing 7 October 2013, Mr A Sutcliffe QC (sitting as a deputy judge of the Chancery Division) was referred by Mr Davenport QC to the post April 2013 authorities on the subject, in particular drawing attention to the following key dicta:
- Rayyan - the amended rule should not be permitted to encourage parties to exploit minor errors for tactical gain.
- Wyche v Careforce Group plc, Commercial Court, unreported, 25 July 2013 - the court should not apply the new rules unthinkingly and should make allowance for human error; and
- Rayyan - the amendment to CPR 3.9 did not mean that relief should be refused where that would be a disproportionate response and would give rise to an unjustified windfall;
- Rayyan Al Iraq Co Ltd v Trans Victory Marine Inc, Commercial Court, unreported, 23 August 2013 - the old ‘checklist’ of factors to be considered upon an application pursuant to CPR 3.9 remain of relevance;
It was submitted that whilst the amendment to CPR 3.9 sought to address a culture of deliberate or reckless delay, it did not go so far as to compel courts to disregard the fundamental principle (even within the confines of a restated overriding objective) that justice should be done between parties.
As to the facts, it was submitted that the ancillary proceedings resulting in orders for disclosure (and unless and implementing orders) had been pursued with aggression, and indeed, at great speed – expedited directions set down at an early stage. The remit of disclosure was so broad as to be oppressive. There was no evidence that the defendants had maliciously or wantonly evaded disclosure, nor ignored court orders. Nor was there any evidence of serious prejudice being suffered as a result of the non-compliance, which in any event would have been de minimis. Finally, the defendants had faced substantial challenges in relation to their (previous) legal representation.
The Deputy Judge concluded that in the particular circumstances of the case and upon a strict reading of the amended CPR 3.9 (taken in the context of the interim and final reports of Lord Justice Jackson) he was not precluded from granting relief from sanction.
One of the key points arising is the importance of compelling grounds in support of an application under CPR 3.9. Biffa Waste Services Ltd v Ali Dinler & Others (2013), is a decision that was reported on the same day as Thevarajah and which provides helpful contrast. Following a road traffic accident, the claimant Mr Dinler brought a personal injury claim against Biffa Waste Services Ltd. During the course of the proceedings Mr Dinler failed to pay court fees and filed witness statements 27 days late (those statements not reaching the court file until the day before trial). Mr Dinler also failed to attempt to agree the trial bundle and served it the day before trial. As Mr Dinler’s claim was liable to automatic strike out upon his failure to comply with the court’s directions, he applied for relief from sanction on the first day of trial. Despite providing no explanation for the delays, Mr Dinler was successful in his application and the trial was adjourned. On appeal it was held that the judge had failed to identify the principles to be applied in granting relief from sanction. Relief should have been refused and the judge had erred in the exercise of his discretion. The automatic strike out of Mr Dinler's claim stood.
The reported first instance decision of Thevarajah is highly significant for litigants who may, for a variety of compelling reasons, have failed to discharge their duties pursuant to court timetables or procedural rules/directions. The decision indicates that whilst emphasising the need for compliance, in appropriate cases the courts will nonetheless continue to do justice where it is genuinely warranted.
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