19 November 2013Print This Post

District judges taking hardline approach to Jackson enforcement

Mercedes: car hire costs under scrutiny

An increasing number of reports are emerging of hardline decisions by district judges over non-compliance with the CPR or breach of orders and directions.

Ozbay & Ozbay v Jack Richards Haulage Limited saw a strike-out that the successful defendant barrister said would not have occurred pre-Jackson, while Ibbertson v Black Horse Limited indicated that applicants will have to show that the wider interests of justice will be served by being granted relief from sanctions.

Ozbay involved a modest personal injury claim augmented by some £220,000 of hire charges arising from two years in a Mercedes hire car.

In a briefing, the defendant barrister, Brian McCluggage of Manchester chambers 9 St John Street, instructed by Berrymans Lace Mawer, said that “notably, the strike-out arose out of breach of disclosure obligations but before any ‘unless order’ had been made. The judge expressly made his decision on the change of litigation culture envisaged by the Jackson reforms”.

He reported that the judge held it was unnecessary for the defendant to establish any specific prejudice by failing to meet the disclosure deadline. “He held that the interests of other litigants who were having their hearings delayed by this case, the claimants’ apparent disregard of the timetable and the increased emphasis on observation of court orders and directions in the revised overriding objective and CPR part 3.9 [relief from sanctions] were critical factors in the exercise of his discretion,” Mr McCluggage said.

“He decided that it was inappropriate for the court to tolerate this standard of litigation, especially when the actual disclosure required was commonplace in terms of financial documentation and the like.”

Permission to appeal was granted as the judge felt that guidance on sanctions for non-compliance was required.

Mr McCluggage said: “The case is of interest because this decision was based on a scenario where a strike-out would have been most unlikely pre-April 2013, but where the facts lay right on the margin where the Jackson reforms might make a difference.”

The Ibbotson case, as reported by City firm CMS Cameron McKenna (which was not involved in the matter), concerned an application for relief from sanctions over a failure to serve notice of funding in form N251.

The claimants had sought to recover £26,900 in additional liabilities in a claim for £8,000, and said they had served the N251 three weeks late. But trainee Katie Dyson said there was no record that either Black Horse or the court had received it, leading the court to conclude, on the balance of probabilities, that the notice had not, in fact, been served.

The court found that the prejudice to Black Horse was substantial because the after-the-event (ATE) premium was “extremely large” and the lack of notice denied Black Horse the opportunity to raise questions about the ATE and factor its potential liability into its litigation strategy. Thus the court denied the claimants relief.

Ms Dyson said: “The unwillingness of the court to indulge the claimants may, at first glance, seem to jar with several recent High Court decisions in which petitioning parties have been granted relief. However, an examination of these recent judgments demonstrates a consistency in the way that the spirit of Lord Justice Jackson’s reforms has been applied by the judiciary.

“In the case of Raayan al Iraq Co Ltd v Trans Victory Marine Inc, relief was granted to the applicant so as to avoid a disproportionate consequence to a small, unintended act of human error. Similarly, in Kesabo v African Barrick Gold plc, relief from sanction was necessary to prevent delay and disadvantage to the parties.

“In these cases, unlike in the present case, neither party was substantially prejudiced by the applicant’s breach of procedure. It may thus be concluded that for an application for relief from sanction to be successful, it is imperative that the applicant demonstrates that the wider interests of justice will be served.”

By Neil Rose


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