Since April 2013, both claimants and defendants alike have had to adapt quickly to the tougher stance the courts have adopted towards compliance with directions and the implementation of the CPR. The penalties for parties failing to comply with directions are now more punitive.
There have been a number of cases of interest over the past few months illustrating how the courts intend to apply the Jackson reforms. I take a closer look at two of the cases here:
In this case the court stressed the importance of complying with the court imposed deadlines.
The parties had failed to comply with the court’s original order dated 6 October 2011 regarding exchange of witness evidence. A further order from 26 November 2012 granted the parties an extension to 6 April 2013 and the parties agreed a further extension of time between themselves to 18 April 2013.
At this stage the claimant was ready to exchange statements although the only remaining defendant to the action was not and made an application to the court for a further date for exchange. His Honour Judge Pelling allowed a final extension of time to serve statements until the day after the application hearing, failing which the defendant would be barred from relying on any witness evidence at trial. Whilst this may appear to have let the defendant off the hook to some extent, the interesting part of the ruling were the comments the learned judge made in relation to the delay.
His Honour Judge Pelling stated he was ‘very close’ to refusing an extension and the failure to comply with the directions was a clear breach of the overriding objective. The delays amounted to a waste of the court’s time and resources. The only reason the judge allowed a final extension was that, in his view, the hearing had taken so close to the implementation of the new rules in April 2013 and the extension period granted in the last court order was relatively short.
The clear inference was that the application of the defendant would have failed post-April 2013 and could have led to the punitive result of the defendant not being permitted to rely on witness evidence. The defendant’s solicitor had indicated that personal commitments had led to a delay in dealing with the witness evidence. The court held this was not a satisfactory reason for delay.
This case was a warning shot across the bows. Delay and breach of court orders is at your peril post April 2013.
In Venulum, we see the new face of Jackson.
The claimant issued an application to extend time for service of the particulars of claim , which was refused by the court. The application was made as the claimant’s solicitors had incorrectly calculated the deadline for service. The claim, a professional negligence action, had been brought near the end of the limitation period. The application was opposed by two of thirteen defendants.
Mr Justice Edwards-Stuart held that, “in general 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 concluded, in light of the stricter approach which must now be adopted, that this was a case where permission should be refused to extend the time to serve the particulars of claim – ‘the claimant has taken quite long enough to bring these proceedings.’ The claimant was therefore unable to proceed with his claim against the opposing defendant.
This new punitive approach requires adaptation by all parties. It is one in which the dilatory conduct by a legal representative can have serious ramifications on a claim.
Qualified one way costs shifting (QOCS) was introduced as part of the Jackson reforms from 1 April 2013. This change has the effect of ending the ability of a defendant to recover costs in most circumstances, following a successful defence to a claim. Costs will still be awarded for interlocutory applications, even if payment is delayed until the conclusion of the claim and an award of damages.
As a defendant, the message is clear. Make sure your own house is in order and do not merely brush aside the dilatory behaviour of your opponent.
This must be tempered with reason, of course. Courts may not look too favourably on the defendant who issues an application at 4.01pm on the day a direction is due. However, where a claimant's conduct causes significant delay sanctions may be imposed - leading ultimately to strike out.
QOCS may well encourage a claimant to continue a weak claim, hoping that the defendant will eventually make an offer when weighing the costs of defence with the costs of settlement. It is a tactic used by some claimant firms now, albeit the presence of an ATE Insurer and the risk of an adverse costs order, are a natural brake on such conduct.
One way of discouraging such behaviour is by taking a much more rigorous approach to breaches of the Court timetable. Repeated applications could well persuade a wavering claimant to abandon his claim, particularly if adverse costs orders swallow up the majority of his damages.
This is a brave new world we are now in. There are perils and pitfalls. In the words of another Jackson, the successful defendant must learn how to, "just beat it."
Sean Brett
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