UK: The Jackson Reforms: A Sea Change In The Conduct Of Civil Litigation In The UK

In 2009, Sir Rupert Jackson, a senior judge within the Court of Appeal, was asked to carry out a review into the costs of civil litigation. The resulting changes to English civil litigation procedure became known as "the Jackson Reforms" and were brought into the Court's Civil Procedure Rules ("CPR") in April 2013.

This article looks at the current status of commercial civil litigation one year on from the implementation of the Jackson Reforms.

Outline of the Jackson Reforms

Sir Rupert's reforms involved a number of key legal changes. The most relevant of these to commercial disputes are the expansion of permitted contingency fee arrangements for English litigation; increases to damages where a defendant fails to beat a claimant's settlement offer; and the possible introduction in the Commercial Court of "costs budgeting" under which a judge will approve at an early stage in the case a budget in respect of the future costs of the case.

The second part of the Jackson Reforms concerns changes to the CPR designed to promote a new culture of avoiding delay and thus a saving of legal costs.

Initial High Court decisions – May 2013 to November 2013

At first, the courts cited the Jackson Reforms to support a tougher approach to dealing with situations where the parties had failed to take steps in litigation in time, but nonetheless judges were prepared to be lenient in appropriate cases.

• In Fons v. Corporal Ltd (9^th May 2013), the Court refused an application for an extension of time to serve witness evidence.
• In Re Atrium Training Services Ltd (7^th June 2013), the applicants applied for an extension of time to give disclosure on the basis that new solicitors had been appointed and the whole disclosure process had to be restarted. The Court granted a fixed extension of time but on terms that the claim would be struck out if the applicants failed to apply.
• In Thevarajah v. Riordan (10^th October 2013), the Chancery Division gave a party relief from sanctions on the basis that, subsequent to the breach, the Defendants had complied with their disclosure obligations which amounted to a material change in circumstances justifying relief from sanctions. The Judge acknowledged the desire to counter a culture of deliberate delay but said that regard should be had to be doing justice between the parties.
• In Raayan v. Trans Victory Marine Inc (23 August 2013),the Commercial Court gave relief from sanctions where a party had served Particulars of Claim two days late.

The balance between taking a tough stance on non-compliance and doing justice between the parties shifted towards the former when the first case in this area reached the Court of Appeal in Mitchell v. News Group Newspapers (27^th November 2013).

Mitchell

The Mitchell case concerned the claim brought by the former Cabinet Minister, Andrew Mitchell MP, against The Sun newspaper for its coverage of the so-called "Plebgate" affair. The Claimant failed to comply with the Court's requirements to file and exchange a costs budget no later than seven days prior to the first Case Management Conference. In the event, the budget was lodged five days late.

Master McCloud had to decide on the consequences of the Claimant's non-compliance. She recognised that she had a range of options for dealing with the non-compliance, ranging from striking out the Claimant's case to adjourning the CMC and ordering the Claimant to pay any costs thrown away. She acknowledged that, but for the Jackson Reforms, she would have decided on the latter approach. However, Master McCloud felt the Jackson Reforms demanded a tougher approach and held that, as a result of his non-compliance, even if successful on the claim the Claimant could only recover court fees and nothing further in terms of costs. Permission to appeal was immediately granted to take the case straight to the Court of Appeal (leap frogging the High Court).

The Court of Appeal upheld the decision not to grant any relief from sanctions and advocated a two stage approach.

1. Can the non-compliance properly be regarded as trivial? If so, relief from sanctions would be appropriate.
2. If the non-compliance is not trivial then the burden is on the defaulting party to persuade the Court to grant relief. Good reasons would be fairly extreme ("debilitating illness" or being "involved in an accident") whereas mistakes and oversight are unlikely to amount to a good reason.

The Court of Appeal also expressly criticised those recent decisions of first instance courts which took a more lenient stance, such as Raayan. Lord Dyson concluded that the new, more robust approach would mean that, in the future, relief from sanctions would be granted "more sparingly than previously".

As we shall see, this decision heralded a true sea change in the way the courts going forward would deal with non-compliance.

Post Mitchell

Mitchell was quickly followed by a decision of the Court of Appeal in Thevarajah (16^th January 2014) to overturn the decision of the High Court granting the Defendants relief from sanctions for failure to comply with their disclosure obligation.

• In MA Lloyd v. PPC International (20^th January 2014), the Claimant failed to serve a witness statement in time and the Court issued an order debarring the Claimant from relying on any factual evidence. The Judge described the Defendant's failure to seek such a sanction as "unduly timid".
• In Web Resolutions Ltd v. E-Surv (20^th January 2014), the Court set aside the grant of permission to appeal where the appeal application had not been served within the mandatory period.
• In Lakatamia Shipping v. Nobu Su (13^th February 2014), the Court issued an "unless order" requiring the Defendant to provide standard disclosure by a particular date. The Court's order did not specify the exact time by which standard disclosure was to be provided, in which circumstances the CPR states the latest time for compliance is 4.30 pm on the day in question. The Defendant's solicitors were working on the basis that the deadline was 5 pm and offered to exchange at 4.45 pm. The Claimant took the position that the Defendant was out of time. The Defendant's solicitors then proceeded to serve their list at 5.16 pm. The Defendant applied for relief from sanctions and the Judge held that, because the Defendant narrowly missed the deadline by minutes rather than hours, this was a case deserving of relief from sanctions.

Two further cases are illustrative of the Commercial Court's approach to the principles laid down in Mitchell where the non-compliance was not trivial and are worth considering in some detail.

In Newland Shipping & Forwarding v. Toba Trading FZC (6^th February 2014), the parties were required to exchange witness statements by 25 October 2013. On 24 October 2013, the Defendants' solicitors wrote to the Claimants' solicitors stating they were no longer acting for the Defendants and saying their former clients wanted an extension of time for serving witness statements by one month. The Claimants' solicitors responded that they did not agree to the extensions and, on 29 October 2013, sought judgment against the Defendants for non-compliance with the Court's orders. Following a hearing before Mr Justice Field, judgment was entered against the Defendants in excess of US$ 7 million. After the Defendants re-instructed their solicitors, an application was made to set aside the judgment against them. The Defendants argued that Mr Justice Field should have considered alternative and more appropriate sanctions when giving judgment (for example, debarring the Defendants from relying on the witness evidence they had failed to serve). The Defendants also noted inter alia that there had been no prior default on their part, they had asked for more time to serve witness evidence and the Claimants' prior conduct had equally delayed proceedings. Citing the Mitchell principles, however, these arguments did not engage the Court's sympathies. Mr Justice Hamblen refused to give relief from sanctions: the nature of the non-performance was serious, not trivial and there was no good reason why the default had occurred.

In Associated Electrical Industries v. Alstom (7^th February 2014), Mr Justice Smith was dealing with the consequences of a failure by the Claimant to serve its Particulars of Claim in time. The Claimant sought to excuse its non-compliance on the basis of the exception in Mitchell that the delay should be regarded as trivial because the pleadings were only 20 days late; the delay did not prejudice the Defendant; the delay did not have any impact on other court users or on the Court's resources; there was no breach of a court order or rule which attracted an automatic sanction; and, the non-compliance was not intentional in that no decision was made to deliberately serve the Particulars late.

When weighing up the proper balance to be struck in this case, the Judge's clear instincts were against ordering a strikeout:

Nonetheless, in reaching his conclusion, the Judge turned back to his earlier decision in Raayan where he noted that the defaulting party in that case was in a stronger position than the Claimant in the present case. In that case, the defaulting party made an unfortunate oversight, which was not due to any indifference towards compliance with CPR provisions, and was only two days late in serving Particulars of Claim. In Raayan, Mr Justice Smith had decided to give relief from sanctions and his decision was expressly criticised by the Court of Appeal. On that basis, therefore, Mr Justice Smith reached the conclusion that "despite my conclusions about the fairness between the parties and what would be a proportionate response to the non-compliance I allow [the Defendant's] application" and he struck out the claim.

The Associated Electrical decision suggests discomfort on the part of first instance judges with taking the draconian approach advocated by the Court of Appeal in Mitchell. Nonetheless, many judges feel bound to adopt that approach lest they be criticised when these matters reach the Court of Appeal. To confuse the picture, Mr Justice Smith's tough approach in Associated Electrical was then criticised by a Deputy Judge sitting in the Chancery Division in Clarke v. Barclays Bank (27^th February 2014), who doubted Mr Justice Smith had correctly followed the Mitchell principles in a case involving relief from sanctions for a failure to provide timely disclosure. Deputy Judge Hollington stated in Clarke that the Court of Appeal in Mitchell had not said Raayan had been wrongly decided, only that Mr Justice Smith had applied incorrect reasoning when reaching his conclusion. Deputy Judge Hollington stated that "My understanding of Mitchell is that the court should strive to be a tough but wise, not an officious or pointless strict, disciplinarian."

Comment

Drawing all the threads together, it is in only cases of a plainly trivial breach that there is a good chance that the Court will give relief from sanctions for non-compliance with the Court's rules and procedures. Whilst the different judges have taken conflicting approaches to the issue of non-compliance, the most recent decisions from the Commercial Court demonstrate an almost "zero tolerance" approach to non-compliance.

The new regime does not mean that the Court will be tough only where automatic sanctions apply in the event of a default and a party asks for relief from those sanctions. The Court is also taking more drastic action when it has to decide the consequences of a breach of an order or the CPR when no automatic sanction applies.

Whilst first instance judges appear to be uncomfortable with the new stricter regime, many feel bound to apply it. This is something which needs to be kept in mind by anyone involved in the litigation process. All parties involved in litigation should keep under review whether more time might be needed to complete a step in the litigation process. The earlier a request for an extension of time is made, or an application to the court for further time, the more likely it is to succeed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.