A Commercial Court judge who was criticised by the Court of Appeal in Mitchell for focusing exclusively on doing justice between the parties, rather than considering wider interests, yesterday showed he had learnt his lesson by refusing to grant a retrospective time extension in a case where he said fairness between the parties alone would have led to the opposite result.
Mr Justice Andrew Smith said “the emphasis that the Court of Appeal has given to enforcement of the CPR in order to encourage procedural discipline” drove him to strike out a case where the claimant had been 20 days late in serving particulars of claim.
In Raayan Al Iraq Co Ltd & Ors v Trans Victory Marine Inc & Ors  EWHC 2696 (Comm), three months before Mitchell, the judge had granted relief from sanction where the claimant had been two days late in serving its particulars of claim.
The Mitchell court made specific reference to the ruling and suggested Smith J “may not have recognised the particular importance of the two elements of the overriding objective that are mentioned in the revised version of CPR 3.9… the judge was focusing exclusively on doing justice between the parties in the individual case and not applying the new approach which seeks to have regard to a wide range of interests”.
The present case, Associated Electrical Industries Ltd v Alstom UK  EWHC 430 (Comm), concerned a claim for indemnity over a payout in a mesothelioma case. AEI sought a retrospective time extension, while Alstom wanted the case struck out.
The judge said: “Looking at the position simply between the parties… I would consider an order striking out the claim form to be a disproportionate response to AEI’s non-compliance, given that the delay in serving the particulars, though not insignificant, was remedied after 20 days and that it did not disadvantage Alstom. This assessment is reinforced by the uncertainties about limitation and whether new proceedings would be struck out.”
Smith J said a retrospective application for an extension of time to serve particulars of claim was analogous to an application under CPR 3.9, but that it would be taking the analogy “too far… to conclude that the Court of Appeal meant that in the case of retrospective extensions of time the two considerations specifically mentioned in CPR 3.9 are of greater weight than other considerations involved in dealing with cases justly and at proportionate cost”.
But even if he was right, it did not much help the claimant: “The court must still seek to give effect to the overriding objective, including the aspects of it emphasised in CPR 3.9.”
The requirement to deal with cases at proportionate cost was not in point here as AEI’s non-compliance did not aggravate the costs; the focus was on the importance of enforcing the requirements of the CPR.
He said: “The emphasis that the Court of Appeal has given to enforcement of the CPR in order to encourage procedural discipline drives me to conclude that I should grant Alstom’s application and refuse that of AEI.
“This conclusion is, I think, confirmed by what the Court of Appeal has said about the Raayan al Iraq case. As here, the non-compliance in that case did not attract an automatic sanction, and no significant court resources were used because of the breach. As here, the probable result of refusing the extension would have been satellite litigation and the amount in issue was relatively modest in relation to the costs that it would involve.
“However, Raayan al Iraq Co Ltd was, I think, in a stronger position than AEI: its particulars were only two days late; they were served late, as I concluded, because of an unfortunate oversight on the part of its solicitor despite his careful system for avoiding such errors, not because of indifference to compliance with the CPR; and the application for an extension of time was prompt.
“Nevertheless… my decision [his emphasis] in Raayan al Iraq was criticised by the Court of Appeal, and not only the observation to which specific reference was made in Mitchell. The result in this case seems to me to follow a fortiori.”