(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very substantially the costs which might be made in his favour.
Held: The appeal was refused. It was inherent in the making of the new rules that the consideration of securing justice in an individual case is not the overarching consideration. The claimant’s failure here had indeed adversely affected parties in other cases before the courts.
The court gave guidance on the application of the new rules. Where the breach complained of is minimal, then some proportionate remedy was appropriate. However: ‘If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all.’
. . And ‘ We acknowledge that it was a robust decision. She was, however, right to focus on the essential elements of the post-Jackson regime. The defaults by the claimant’s solicitors were not minor or trivial and there was no good excuse for them. They resulted in an abortive costs budgeting hearing and an adjournment which had serious consequences for other litigants. Although it seems harsh in the individual case of Mr Mitchell’s claim, if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback.
In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past.’
Lord Dyson MR, Richards, Elias LJJ
[2013] EWCA Civ 1537, [2013] WLR(D) 466, [2014] 1 WLR 795, [2014] EMLR 13, [2014] 2 All ER 430, [2014] BLR 89, [2013] 6 Costs LR 1008
Bailii, WLRD
Civil Procedure Rules 3.9
England and Wales
Citing:
Cited – Hashtroodi v Hancock CA 27-May-2004
The claimant had issued proceedings in time, but then the limitation period expired before it was served, and in the meantime the limitation period had expired. The defendant appealed against an automatic extension of time for service granted to the . .
Cited – Tibbles v SIG Plc (T/A Asphaltic Roofing Supplies) CA 26-Apr-2012
The court considered applications for relief from sanction under CPR 3.1(7).
Held: An application under CPR 3.1(7) usually requires a change of circumstances.
Considerations of finality, the undesirability of allowing litigants to have . .
Cited – F and C Alternative Investments (Holdings) Ltd and Others v Barthelemy and Another CA 22-Jun-2012
The parties, former partners in a limited liability partnership providing investment funds management, had been involved in protracted and bitter litigation. The appellant now challenged the award of indemnity costs. . .
Cited – Mannion v Ginty CA 28-Nov-2012
The court discussed an appeal against a case management decision.
Held: Lewison LJ said: ‘It has been said more than once in this court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance . .
Cited – Wyche v Careforce Group Plc ComC 25-Jul-2013
The defendant had failed to comply in all respects with an ‘unless’ order.
Held: The court gave relief under CPR 3.9 for two failures which the court described as ‘material in the sense that they were more than trivial’. They were . .
Appeal from – Mitchell v News Group Newspapers Ltd QBD 1-Aug-2013
The defamation claimant sought relief from sanctions imposed after a failure to comply with orders requiring him to discuss budgets and budgetary assumptions.
Held: The claimant had failed to deliver the required costs budget in time, and any . .
Cited – Raayan Al Iraq Co Ltd and Others v Trans Victory Marine Inc and Others ComC 23-Aug-2013
Application for extension of two days to service of particulars of claim. The defendants resisted saying that the court should apply sanctions against the claimant. The claimants applied for relief under rule 3.9.
Held: The new rules were . .
Cited by:
Cited – Rattan v UBS Ag, London Branch ComC 12-Mar-2014
rattan_ubsComC0314
The claimant had sought an order limiting the defendant’s costs after alleged non-compliance with directions, and failing to file a costs budget.
Held: The application was rejected. The Commercial Court will firmly discourage the taking of . .
Cited – Summit Navigation Ltd and Another v Generali Romania Asigurare Reasigurare Sa Ardaf Sa and Another ComC 21-Feb-2014
The commercial court will not encourage time wasting procedural applications. Leggatt J summarised the principles that should be applied on an application for relief from sanctions: ‘i) On an application for relief from a sanction under CPR 3.9, it . .
Cited – Webb Resolutions Ltd v E-Surv Ltd QBD 20-Jan-2014
A party in default seeking an out-of-time extension for making a renewed application for permission to appeal (under CPR r 52.3(5)) would have to satisfy the same tests as were applied to the default in Mitchell. . .
Cited – Associated Electrical Industries Ltd v Alstom UK ComC 24-Feb-2014
The claimant was late in serving its particulars of claim. The defendant now requested the strike out of the claim for that default.
Held: The court applied the principles set out in Mitchell to refuse consent. . .
Cited – Kaneria v Kaneria and Others ChD 15-Apr-2014
The parties were embroiled in a company dispute with allegations of conduct prejudicial to minority shareholders. An application was now made for sanctions for a failure to comply with court directions.
Held: Unless and until a higher Court . .
Cited – M A Lloyd and Sons Ltd (T/A KPM Marine) v PPC International Ltd (T/A Professional Powercraft) QBD 20-Jan-2014
. .
Cited – Hallam Estates Ltd and Another v Baker CA 19-May-2014
‘The paying parties appeal against a decision of the High Court reversing a decision of the costs judge, whereby he declined to set aside his earlier order granting an extension of time for serving the points of dispute. The principal issues in this . .
See Also – Mitchell v News Group Newspapers Ltd QBD 27-Mar-2014
Application for discovery of documents held by a third party, the Police Complaints Commission) in a defamation action. . .
See Also – Mitchell v News Group Newspapers Ltd QBD 11-Jun-2014
. .
See Also – Mitchell v News Group Newspapers Ltd QBD 28-Jul-2014
The claimant MP had a bad tempered altercation with police officers outside Downing Street. He sued the defendant newspaper in defamation saying that they had falsely accused him of calling te officers ‘plebs’. One officer now sued the MP saying . .
See Also – Mitchell v News Group Newspapers Ltd QBD 31-Oct-2014
The claimant alleged defamation by the defendant. In the second action, the policeman claimant alleged defamation by the first claimant. The court heard applications as to the admission of expert evidence, and as to the inclusion or otherwise of . .
See Also – Mitchell v News Group Newspapers Limited QBD 27-Nov-2014
. .
Cited – Thevarajah v Riordan and Others SC 16-Dec-2015
The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied . .
Cited – BPP University College of Professional Studies v Revenue and Customs FTTTx 1-Jul-2014
FTTTx HMRC directed to provide further and better particulars – unless order breached – whether HMRC should be barred – whether Mitchell applies – HMRC barred. . .
Cited – Revenue and Customs v BPP Holdings Ltd and Others UTTC 3-Oct-2014
PROCEDURE – HMRC barred from further participation – FTT rule 8 – whether FTT applied correct principles – no – whether FTT’s decision outside reasonable exercise of judicial discretion – yes – decision set aside and remade – no barring order . .
Cited – BPP Holdings v Revenue and Customs CA 1-Mar-2016
HMRC had been debarred from further participation in the proceedings. BPP provided training courses, and the issue was as to the chargeability to VAT of books supplied between companies in the group. In the proceedings, HMRC repeatedly failed to . .
Cited – BPP Holdings Ltd and Others v Revenue and Customs SC 26-Jul-2017
The Revenue had challenged a decision by the FTTTx to bar it from defending an appeal as to VAT liability. It had failed first to meet procedural time limits and on the issue of an unless order had failed to comply. The Revenue challenged the . .
Lists of cited by and citing cases may be incomplete.
Costs, Defamation, Litigation Practice
Leading Case
Updated: 31 October 2021; Ref: scu.518472