The changes to the case management rules included as part of Lord Justice Jackson’s reforms included an express reference to compliance. One might think it unnecessary that rules should need to recite that they are to be obeyed, but the amendments signalled a new change in attitude rather than merely a recital of new obligations.
I wrote about this in my article A clear message from the Master of the Rolls about CPR enforcement reporting on a speech made by the Master of the Rolls when the rules first came out. The changed climate takes the form of an addition to the overriding objective which reads:
….enforcing compliance with rules, practice directions and orders
…and an updated Rule 3.9 which replaced a wide range of circumstances in the old rules about relief from sanctions with a cut-down, hard-edged rule reading simply:
On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, 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.
The cases which we have seen so far indicate that judges are intending to observe the new requirements, although some (understandable and generally justified) mixed messages have emerged with judges showing willingness to allow the new regime to bed in.
A tougher compliance regime brings obvious encouragement to lawyers to exploit every defect in their opponents’ compliance, whether that is justifiable or not. It is arguable, indeed, that it is a neglect of duty not to apply to strike out an opponent who is in breach of an order for, for example, delivery of disclosure in appropriate circumstances; there is obviously no generally-applicable definition of what is “justifiable” or “appropriate”, that being a matter of discretion taking in a number of factors.
Hitherto, as the Master of the Rolls explained in his speech, the court has tended to err on the side of relief, albeit perhaps on terms. We wait to see if any general conclusions can be drawn from court reactions to this kind of application under the new regime.
We get a clue, perhaps, from Wyche v Careforce Group PLC. Delivered on 25th July, this judgment is not (yet) reported but there is a summary of it on the Litigation Futures website with the title High Court tempers hard line on relief from sanctions. Application was made to strike out the defence because of non-compliance with disclosure requirements. The court granted relief from sanctions saying that human error, particularly inadvertent error, was relevant but not conclusive in weighing the Rule 3.9 factors.
From an objective point of view (or from my point of view at least), this makes sense. If every defect leads to an application, then we go down the US route, with costs driven up for reasons which have nothing to do with justice or the merits of the case. The Master of the Rolls makes it clear that some apparent injustice in some cases is a price to be paid for improving the conduct of the litigation for the benefit of all cases. A possible unintended consequence is that the courts become clogged with contested applications about minor defects.
The only possible conclusion is that parties should behave as if relief from sanctions is the exception rather than the rule. That may not be how it turns out in your case, but it hardly seems worth the risk of finding out. If in doubt, ask your PI insurers.