The Master of the Rolls has signalled a tough new approach to non-compliance with the Civil Procedure Rules and granting relief from sanctions, warning parties that they can “no longer expect indulgence if they fail to comply with their procedural obligations”.
In a major speech setting the scene for the start of the Jackson reforms next week, Lord Dyson said courts at all levels – including the Court of Appeal – have focused too much on securing justice in individual cases without considering the wider impact on the system of non-compliance.
The judge also warned that observers have been wrong to infer from the recent Henry ruling that the courts will not apply the costs management rules robustly.
The overriding objective will change on 1 April to include explicit reference to the need to deal with cases “at proportionate cost”, and that this includes enforcing compliance with rules, practice directions and orders. The new rule 3.9 on proportionality requires litigation to be conducted “efficiently and at proportionate cost”.
Speaking last week at the District Judges’ Annual Seminar, Lord Dyson said that while this was all implicit in the existing rules, “mistaken assumptions” have taken hold that focus on the immediate case, meaning non-compliance has been tolerated at the expense of taking a broader view on the impact on other court users.
“One of the problems that has undermined the efficacy of case management has been too great a desire to err on the side of individual justice without any real consideration of the effect that has on the justice system’s ability to secure effective access to justice for all court users,” he explained. “The Court of Appeal has been as guilty of this error as any other court.”
Lord Dyson said the revised rules should put a stop to what Lord Justice Jackson recently described in one case as the “culture of toleration of delay and non-compliance with court orders”. The MR continued: “That the Court of Appeal could call for such a culture to be brought to an end… demonstrates just how far we have moved away from the approach that the CPR and the overriding objective were intended to establish in 1999.”
The relationship between justice and procedure has changed, Lord Dyson said. “It has changed not by transforming rules and rule compliance into trip wires. Nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice. If that were the case, then we would have, quite impermissibly, rendered compliance an end in itself and one superior to doing justice in any case.
“It has changed because doing justice is not something distinct from, and superior to, the overriding objective. Doing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at proportionate cost. Justice in the individual case is now only achievable through the proper application of the CPR consistently with the overriding objective.”
The tougher approach to compliance and relief from sanctions – so that “parties can no longer expect indulgence if they fail to comply with their procedural obligations” – could mean that in some cases, or some classes of case (such as those allocated to the small claims or fast track), “the court must reach a decision at trial on less evidence than it might have done in the past…
“That we have to do so stems from our commitment to proportionality, and the need to secure a fair distribution of court resources amongst all those who need to come to the courts in order to vindicate their rights.”
Lord Dyson concluded by stressing that the approach required by the overriding objective will not simply apply to questions of rule-compliance and relief from sanctions – it will apply to case management, costs management and costs budgeting as well.
“Those commentators who perceive, for instance, the decision in Henry v News Group Newspapers Ltd  EWCA Civ 19 as some form of signal from the Court of Appeal that the new rules will not be applied robustly are wrong. Henry was decided under the Mark I overriding objective.”