31 May, 2013
In recent weeks the cases of Venulum Property Investments Ltd v Space Architecture & Others  EWHC 1242 (TCC), and Fons HF v Corporal Ltd  EWHC 1278 (Ch) have allowed the Courts to issue stark warnings about the stricter approach to relief from sanctions which Judges will take following changes to the CPR.
In Venulum Property Investments Ltd v Space Architecture & Others  EWHC 1242 (TCC), the claimant's application for permission to extend time for service of its particulars of claim was refused by the Court, the Judge noting that the "stricter approach that must now be taken by the courts towards those who fail to comply with rules".
Mr Justice Edwards-Stuart became the first judge to interpret the new provisions governing relief from sanction under rule 3.9 and Lord Dyson's comments that parties can "no longer expect indulgence if they fail to comply with their procedural obligations".
The claimant applied for permission to extend time after its solicitors, incorrectly calculated the deadline for service. The action, a professional negligence claim, was brought by Venulum against 13 defendants; however, only two of them (the 'Miller defendants') opposed Venulum's application.
The claim had been brought near the end of the limitation period and the judge's refusal of Venulum's application ends its claim against the Miller defendants since a fresh action would now be statute barred, but its action against all the other defendants continues.
The judge explained 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."
It was relevant that the claimant had as good, if not better, claim against the other defendants and so would not be prejudiced if it could not sue the Miller defendants, while "the fact that the claimant was seeking to advance a claim for bad faith that is pleaded in particularly vague terms is a course that does not merit indulgence".
He concluded: "In my judgment, when the circumstances are considered as a whole, particularly in the light of the stricter approach that must now be taken by the courts towards those who fail to comply with rules following the new changes to the CPR, this is a case where the court should refuse permission to extend time. The claimant has taken quite long enough to bring these proceedings and enough is now enough."
The ruling in Fons HF v Corporal Ltd  EWHC 1278 (Ch) concerned an extension of time to exchange witness statements; though the case started long before 1 April, this hearing came after the amended CPR went live.
Both parties were in breach of a district judge's order in November 2012 to serve the other with witness statements by 6 April. Had they been served as directed, it would have become apparent that the five days listed for the trial was far too long, the judge said, and "a valuable national resource, namely court sitting days, was likely to be wasted".
However, though he came "very close" to refusing an extension to either party, Judge Pelling said: "I am only persuaded to extend the time for the filing of witness statements because this hearing is taking place only a very short while after the amendment of the CPR and because the period that has elapsed since the final extension expired is relatively short."
But he issued a generally warning: "All parties and the wider litigation world should be aware that all courts at all levels are now required to take a very much stricter view of the failure by parties to comply with directions, particularly where the failure to comply is likely to lead into a waste of the limited resources made available to those with cases to litigate."
These rulings clearly demonstrates that the Court recognise that the Jackson reforms have "radically amended" the new CPR, replacing the nine factors the courts used to consider with a more general consideration on "all the circumstances of the case....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".
One does however question whether the Judge would have been quite so quick to dismiss the Venulum application particularly if the claimant had not had other defendants to pursue or if the claim had not been poorly drafted. Nevertheless it remains the case that points relating to procedural breaches, which might not previously have been pursued, should be seriously considered.
Kella Bowers is an Associate in the Large Loss Department of Forbes Solicitors and can be contacted on 01254 222437