23 May 2013Print This Post

High Court bares post-Jackson teeth with stricter approach to relief from sanctions

Lewis: stark reminder to all practitioners

The High Court has sent the first sign of a hardened stance against missed deadlines since the new Civil Procedure Rules (CPR) came into force.

In Venulum Property Investments Ltd v Space Architecture & Others [2013] EWHC 1242 (TCC), Mr Justice Edwards-Stuart refused an application by the claimant for permission to extend time for service of its particulars of claim, noting the “stricter approach that must now be taken by the courts towards those who fail to comply with rules”.

He became the first judge to interpret the new provisions governing relief from sanction under rule 3.9 and his ruling was in line with the pre-1 April warning from the Master of the Rolls, Lord Dyson, that parties can “no longer expect indulgence if they fail to comply with their procedural obligations”.

The claimant applied for permission to extend time after its solicitors, Shoosmiths, incorrectly calculated the deadline for service. The action, a professional negligence claim, was brought by Venulum against 13 defendants; however, only two of them (the ‘Miller defendants’) opposed Venulum’s application. They were advised by Weightmans.

The claim had been brought near the end of the limitation period and the judge’s refusal of Venulum’s application ends its claim against the Miller defendants since a fresh action would now be statute barred, but its action against all the other defendants continues.

Mr Justice Edwards-Stuart recognised that the court’s discretionary power to extend time had been “radically amended” in the new CPR, replacing the nine factors the courts used to consider with a more general consideration on “all the circumstances of the case… 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”.

Weightmans said the ruling is the first to combine the sentiment of the Jackson reforms and the approach outlined in previous Court of Appeal rulings on the likely impact of the new rules. The judge explained that: “In general, it is not satisfactory or in the interests of justice to have claims brought in the closing weeks or months of a long limitation period. Delay is bad for justice.”

As well as this, he took into account that the claimant had as good, if not better, claim against the other defendants and so would not be prejudiced if it could not sue the Miller defendants, while “the fact that the claimant was seeking to advance a claim for bad faith that is pleaded in particularly vague terms is a course that does not merit indulgence”.

He concluded: “In my judgment, when the circumstances are considered as a whole, particularly in the light of the stricter approach that must now be taken by the courts towards those who fail to comply with rules following the new changes to the CPR, this is a case where the court should refuse permission to extend time. The claimant has taken quite long enough to bring these proceedings and enough is now enough.”

Edward Lewis, partner and head of construction risk at Weightmans, said: “Today’s judgment is extremely important in highlighting the tightening of standards and the approach that is to be expected of the courts under the new CPR. This ruling offers a stark reminder to all practitioners that we are operating in the context of a much altered litigation landscape.”

By Neil Rose