High Court decision warns of strict post-Jackson approach to case management

The High Court has emphasised that recent amendments to the Civil Procedure Rules (CPR) require the court to pay close attention to procedural failures, saying "A failure to comply with a rule, direction or order is of itself a clear breach of the overriding objective and is likely to result in severe sanctions": Fons HF v Corporal Ltd [2013] EWHC 1278 (Ch).

The key practical messages for parties to litigation are to ensure, so far as possible, that the time limits set for taking procedural steps are both reasonable and achievable, and that they are complied with strictly. Where it is not possible to comply, it is better to apply for an extension of time before the deadline expires rather than seeking the court's indulgence after the event. 

In addition, where an order requires "service" of a document, parties should not assume that they will be excused from non-compliance because the opponent is not in a position to exchange.

Background

The judge (HH Judge Pelling QC) considered whether to grant an extension of time for service of witness statements, some three weeks after the previous deadline had expired.

The judge referred to the recent amendment to the “overriding objective”, which makes it clear that dealing with cases justly and at proportionate cost includes “enforcing compliance with rules, practice directions and orders" (see our Jackson reforms home page for more information on the changes brought in on 1 April).

Here the claimant had been ready, willing and able to exchange witness statements in time, but the defendant had not been in a position to do so. The court pointed out that both parties were in breach, since the order referred to service rather than exchange. Accordingly, the claimant should have served the witness statements or at least lodged them at court and either offered them for exchange or provided them to the defendants in escrow in a sealed envelope. However, the court noted, the defendant's breach was more serious.

Decision

The judge said that he had "come very close to refusing an extension to either of the parties". In the end he was only persuaded to extend time until 4 pm the next day because the hearing was taking place only shortly after the CPR amendment took effect, and because the period that had elapsed since the deadline expired was relatively short.

He added: "However, 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."