13 December 2013Print This Post

Exclusive: High Court grants first post-Mitchell relief from sanctions

Construction: case followed investment failures in off-plan property purchases

The relationship between justice and procedure “has not changed so as to transform rules and rule compliance into trip wires”, the High Court said this week in the first significant post-Mitchell ruling where relief from sanctions was granted.

HHJ Oliver-Jones QC, sitting as a High Court judge in Birmingham, found that the failure to comply with an unless order to serve particulars of claim in relation to eight out of 134 claimants in a group professional negligence action was a trivial breach.

Adlington & 133 others v Els International Lawyers LLP (in administration) concerns losses each claimant is alleged to have suffered in respect of failed investment in the purchase of ‘off-plan’ property in Spain.

The judge took as his starting point that he had to consider the nature of the non-compliance. Here the particulars of claims had been drafted by the deadline but the eight claimants were unable to sign their statement of case because they were abroad or otherwise unavailable.

Also, with the claimants split into three tranches with different deadlines, had the defendant agreed to transfer them to a later tranche, as had happened with some other claimants, then there would have been full compliance.

Agreeing with the submissions of the claimants’ barrister, Gordon Wignall of No5 Chambers, the judge concluded that the failure was one “of form rather than substance, and, as such, was an insignificant failure that, in the context of my order as a whole and the reasoning underlying the sanction, can properly be regarded as trivial”.

He noted that the application for relief was made promptly and that had an application for an extension been made before the deadline had expired, “it would almost certainly have been granted”.

He continued: “The ‘nature’ of non-compliance cannot, in my judgment, be divorced from consideration of the ‘consequences’ of non-compliance. Whether or not a failure to comply with an order is ‘significant’ or ‘insignificant’ must involve having regard to consequences.

“In these cases there were no adverse consequences at all, either to the defendant or to the efficient conduct overall of this litigation.”

In particular a two-month stay took effect following service of the particulars of all the claimants to allow the defendant the opportunity of considering all 134 of them, and at the time this commenced, there were no “stragglers”.

HHJ Oliver-Jones said that even if he was wrong to consider the non-compliance trivial, he would have been persuaded to grant relief in the circumstances.

“Applying the guidelines in Mitchell, the question then becomes, was there a good reason for the default? The claimant’s solicitor does not suggest he overlooked or otherwise disregarded the deadline; on the contrary, he was very acutely aware of it. Nor does he rely on ‘pressure of work’ as an excuse, although he clearly was under great pressure. If he had advanced these excuses, then it would have been likely that they would have been rejected.

“The real reason for the failure to comply was the fact that Mr Cotter did not realise that a few of his clients would be simply unavailable to sign their particulars of claim when the time to do so arrived. The arrangements for holidays made by the eight relevant claimants were outside Mr Cotter’s control.”

The judge was at pains to make it clear that he had not ignored the wide range of interests affected by compliance failures and the need to be more robust about them, “nor focused exclusively, or even primarily, on doing justice between the parties in this individual case, although clearly I have had to consider the latter in the context of the former”.

He said: “I bear in mind that in reaching the conclusions he did in his final report, Sir Rupert Jackson rejected what he described as ‘the extreme course which was canvassed as one possibility in [the preliminary report] paragraph 43.4.21 or any approach of that nature’ (my emphasis added), namely that non-compliance would no longer be tolerated save in ‘exceptional circumstances’.

“Thus the circumstances do not have to be exceptional to attract the granting of relief, but a decision as to whether or not relief should be granted does involve the ‘change of balance’ implicit in the new wording of CPR 3.9.

“I have undertaken that balancing exercise and given great weight to the two factors identified expressly in the rule. However, bearing in mind that the relationship between justice and procedure has not changed so as to transform rules and rule compliance into trip wires, and ‘nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice’ [a quote taken from the Master of the Rolls’ March implementation speech], I am satisfied that relief should be granted in all the circumstances of this case.”

By Neil Rose

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