When I first set up a web site devoted (as it was then) to UK civil procedure, and specifically the key discovery aspects of case management, I put out a general plea for anecdotal information about the outcomes of case management conferences and applications related to disclosure. I got no reaction at all, and my knowledge of what actually happened at such hearings was confined to those few which were reported and to anecdote picked up whilst talking to lawyers.
Times move on, and two things have happened which are giving us a much better picture of what actually happens when procedural matters come before the court. One is a greater sense among practitioners that they need to know what the norms are in the post-Jackson courts. The other is the number of lawyers (mainly barristers) who have turned to blogs and Twitter to report factual outcomes as well as to voice opinions. Amongst these is Sovereign Chambers in Leeds (not the only Leeds-based chambers to be prominent in this area) whose Stuart Young has reported on the outcome of an application for relief from sanctions under the new Rule 3.9. The failure in this case was to do with a deadline – particulars of claim were filed out of time because of an inaccurate note made by the claimant’s solicitor. The article is called Jackson in action: failure to comply with procedural obligation will be dealt with harshly.
The application and its outcome – it was unsuccessful – are worth reporting because of the care which the judge took to explain why he reached his conclusion. He also refused permission to appeal because he saw no real prospect of success, so this particular case will probably not be amongst those to be considered by the “Jackson Five”, the group of appeal judges designated to hear appeals arising from the new rules.
Stuart Young’s report is a model of its kind. I am not sure whether he intended the subjective criticism implicit in the word “harshly” in his heading – I would have said “toughly”, to convey severity without suggesting an unfairness which does not appear from the article itself. What he says needs no commentary from me. It is enough to quote its summary:
What is shown by this case is the courts are now far less likely to tolerate any slippage in light of the new Civil Procedure Rules, even as in the claimant’s case, where there has been an honest belief. The approach can be said to demonstrate the “sea change” in the rules, and reinforces the critical importance of compliance with the rules and orders of the court.
I agree. However there is a danger of one-sided reporting, particularly of first instance cases. Where a party scores a victory and a case is (or remains) struck out then there is an understandable wish to report this on the part of the successful litigant. However in those cases where relief from sanction is granted (and it does happen) the successful party just wants to get on with the case and is reluctant to obtain publicity.
Those cases where sanctions are applied tend to be viewed as the application of principles, whereas when the court grants relief this is viewed as “fact specific”.
I suspect we will have to wait until we have a definitive view from the Court of Appeal. Until then it is important to see first instance cases as examples rather than precedents.
This is not an argument against the reporting of such cases (I do it myself) but an attempt to make the point that such reports may not reflect the full picture.
Thanks Gordon. I think – I hope – I made the point that we have no more than a collection of anecdotes for now, “examples not precedents” as you put it. I like your observation on the difference between the application of sanctions being based on principle while grants of relief are fact-specific.