I have only recently discovered the Civil Litigation Brief run by barrister Gordon Exall of Zenith Chambers in Leeds. It is an essential resource for those facing the sharp winds of the new case management regime. Its title A Blog about Procedure, Limitation, Default and the CPR defines its purpose.
The article which first caught my eye is headed Extension of time granted: defendants objection regrettable, reporting on a case called Raayan Al Iraq Co Ltd –v- Trans Victory Machine Inc. Particulars of claim were served two days late and the defendant refused to agree an extension; the claimant applied to the court, which granted the extension and found the defendant’s objection “regrettable”.
Read Gordon Exall’s post for the detail. In doing so, focus not only on the heightened responsibility of solicitors to comply with deadlines but on the possibly split responsibilities of those who find a procedural weapon to hand as a result.
The Master of the Rolls has indicated in the strongest terms that rules are there to be obeyed and that some injustice will inevitably follow as parties are denied access to the court through some procedural defect. On one view, solicitors have a duty to take points which are consistent with that and which may benefit their clients; on the other hand, the taking of every point runs up costs and takes us towards the US model where procedural point-taking appears to have little to do with justice and has contributed to the US place at the head of the legal expense league-table.
There is no right answer here applicable in all cases – that is what judicial discretion is for. We face an uncertain period whilst the new rules bed down and lawyers try to steer a middle course between two unpalatable extremes.
While you are on Gordon Exall’s site, run your eye down some of the headings of his other posts. Litigation after Jackson: a 10 point survival guide must be considered essential reading across a range of case management rules. Other posts focus on specific obligations and the consequences of failing to comply with them.