Leading judge warns litigants not to start playing games over “minor procedural glitches”

Coulson: Ruling published “pour encourager les autres”

The incoming deputy head of civil justice has warned parties not to abuse the courts’ tougher approach to rule compliance.

Mr Justice Coulson – who takes on the role when he is elevated to the Court of Appeal next March – said applications based on “minor procedural glitches” were on the rise, having all but dried up following the 2014 ruling in Denton.

As a result, he said he was publishing his ruling in Freeborn & Anor v Marcal (t/a Dan Marcal Architects) [2017] EWHC 3046 (TCC)pour encourager les autres”.

The decision ended with a clear warning: “It is, of course, extremely important, post-Mitchell and post-Denton, for the parties to civil litigation to ensure that they comply with the CPR. Courts will be far less forgiving of non-compliance than they ever used to be.

“But that tougher approach must not be abused in the way that occurred here. Parties need to consider carefully whether the alleged breach of the rules is, on analysis, any such thing and, even if it is, whether it is proportionate and appropriate to require or oppose an application for relief from sanctions in all the circumstances of the case.”

In the case, the Technology and Construction Court office wrote to the parties on 20 September 2017 to say that to the case management conference (CMC) would be held on 24 November.

The letter expressly required them to file and exchange costs budgets not less than seven days before the CMC; CPR 3.13 provides that “unless the court otherwise orders”, budgets must be filed and exchanged not later than 21 days before the CMC.

The claimants’ solicitors, Healys, served their costs budget on 2 November, the defendant’s (Caytons Law) on 16 November. The former then wrote to say that the budget should have been provided 14 days earlier.

Despite his opposite number warning that he would seek costs if forced to apply to the court, the claimant’s solicitor said there had been a “gross delay” in the service of the defendant’s costs budget and maintained that the defendant should be treated as having filed a budget comprising only the applicable court fees.

As a result, the defendant’s solicitor made a formal application for relief from sanctions, but Coulson J ruled that this was not necessary.

“Rule 3.13(1) is clear, that the 21-day period applies, ‘unless the court otherwise orders’. I consider that the letter from the court office of 20 September 2017 amounted to the court ‘ordering otherwise’.

“It stipulated when the costs budget should be provided. The defendant was quite entitled to conclude that the court had ‘ordered otherwise’ than rule 3.13, and to rely on the content of the letter.

“It is immaterial that, on further consideration, it might have occurred to the defendant’s solicitor that the letter may have contained an error, and was referring to the old rule 3.13, which stipulated seven, not 21, days.

“A busy litigation solicitor is entitled simply to rely on the date specified in writing by the court office, rather than embarking on an investigation into whether or not the letter contained an error.”

Coulson J continued that, if he was wrong, he was in “no doubt” that relief should be granted.

The breach was not serious and significant – “no hearing has been lost and no delay to the costs budget process has in fact occurred” – the letter from the court was “the best possible reason for the delay”, and it was “plainly” just and reasonable to grant relief.

“There was no deliberate breach. There was at worst an inadvertent breach because there was reliance on a letter from the court office which, on this assumption, contained an error. In addition, the delays have caused no prejudice to the claimants, whereas there would be considerable prejudice to the defendant if he was not able to rely on his costs budget.”

He ordered the claimants to pay the defendant’s costs of and occasioned by the “unnecessary application”, which he summarily assessed at £1,300.

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