Those of you excited by my report yesterday of a District Judge striking out both statements of case for failure to comply with a practice direction did, I hope, get to the bottom, where the words “fool” and “1 April” occurred close to each other.
I hope also that I am not understood to be advocating such tough action, not at a first CMC anyway. Nevertheless, the fictional Judge Solomon Dredd was not wrong to draw attention to the requirements of Paragraph 2A.2 of the Practice Direction to Part 31, nor to point out that failure to comply with a rule, order or practice direction entitles the court to strike out a statement of case under Part 3.4(2)(c) CPR.
I am not advocating US-style procedural battles either, but it is worth pointing out that there are sound tactical and costs-saving reasons for knowing about these rules. Suppose you have done what the rules (and, usually, common sense) require and have identified your electronic sources, worked out which of them is important, and estimated the cost of extracting meaningful information from them. Your opponents have done none of these things, either because it suits them tactically or because they haven’t a clue. Why should your client be held back?
Point out the obligations and the sanctions which Part 3.4(2)(c) CPR affords, and suggest that the subject be dealt with at the CMC. Given the clear scope of the obligations and the potential downside of failure to comply, it seems likely that your opponent will do something – get his act together or start discussing settlement perhaps. He may assume that the court will not strike him out – but can he bank on it in the new climate of case management efficiency?