One cannot hope to keep up with everything which is going on in consequence of the Jackson reforms to civil procedure in England and Wales. They took effect on 1 April and we are seeing a move from judgments which reflect the transition – where a certain amount of latitude was to be expected from judges – into the tough new area established by the new Rule 3.9 relating to relief from sanctions. Even now (and as one would hope) not all the judgments result in disaster for the party in default. I make no apology for relying on, and referring you to, articles by others – there is now some high-quality and timely reporting and commentary on cases and I do you better service by pointing you to it than inventing my own whilst simultaneously covering the US, Hong Kong and other places.
The big one here is the “Plebgate” judgment about which I wrote here and here. The appeal by Andrew Mitchell MP comes before the Court of Appeal shortly and Twitter is rife with rival views as to the likely outcome. Litigation Futures carries an article called Regan: CA will uphold Plebgate budget ruling which reports on Professor Dominic Regan’s certainty that the Court of Appeal will uphold Master McCloud’s judgment and deny Mitchell relief from sanctions. There are those with the opposite view, however, and it has been interesting seeing learned barristers and academics trading views on Twitter.
Rachel Rothwell’s article in the Law Society Gazette headed Jackson: we’ll hear from appeal court soon has collected a number of comments which summarise the arguments one way and another, including many points made about whether the outcome of CPR 3.9 judgments is just – a rather different question from whether they are correct.
I have referred before to the excellent Civil Litigation Brief produced by barrister Gordon Exall. You may be interested in his article Striking out for abuse of process: the need to advise clients to preserve evidence. This concerns Matthews v Collins, where the widow of a victim of industrial disease gave authority for histology samples to be destroyed without advice.
Gordon Exall also has an interesting article about a case with a rather different outcome. His article Relief from sanctions granted second time round: quite a twist to this tale? tells of Thevarajah –v-Riordan, where a defendant who was unsuccessful in a first application for relief from sanctions (the failure involving compliance with disclosure obligations) made a second application for relief which was granted. As usual, Gordon Exall set out clearly the points made for and against the application, with cross-links to other articles where appropriate – a model of explanatory clarity.
There are several other such reports in Gordon Exall’s collection, and I am not going to smmarise them all. The one which is perhaps of most interest to those involved in eDisclosure applications is one I have linked to before, Re Atrium Training Services Ltd which Gordon Exall reports under the heading Have you complied with an “Unless order”? Guidance in the context of eDisclosure. I mention it again today because I referred a soicitor to it yesterday. Many of these sanctions cases involve failure to comply with a deadline imposed by the the rules or by the court; whatever else may be in dispute, the base question about the failure is usually black and white – the due time had passed. Atrium interposes a qualitative element, namely was the disclosure adequate to constitute compliance?
The judge put it this way:
In many cases where [unless orders] are made no list is served at all. Both counsel conceded, rightly in my judgment, that a court could infer lack of good faith where it was obvious from patent deficiencies in the list that it had been prepared in apparent but not real compliance with the obligation to give discovery.
How “patent” must the deficiences be to warrant the conclusion that the party is in default? A deciding factor here was the finding that the deficiencies arose from “honest and understandable errors” – see the end of Gordon Exalls’ report on this and on the importance of:
…putting evidence before the Court and, if mistakes have been made, admitting them and providing material which explains how those mistakes were made.
Lastly in this round-up, I refer you to a Litigation Futures article whose heading High Court: winning party should not be kept to out-of-date approved budget will be enough to entice those whose cases involve costs management. The facts are fairly special to the case – oversight by the parties and court meant that an increased budget was overlooked at the PTR and it was unlikely that either party would have challnegd the increase sought by the other. That does not make it any less important.
I do not aspire to keep up with the detail of all this, and suggest that you follow Gordon Exall on Twitter where he can be found as @CivilLitTweet. His scope is wider than eDisclosure, but it is fair bet that many of the applications which fall within his self-imposed remit to cover Procedure, Limitation, Default and the Civil Procedure Rules will relate to disclosure.