piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

CRO's: When is it time to go for 'the General'?

Some of you in the world of personal injury and clinical negligence may have had the misfortune of encountering vexatious litigants. Those litigants where another file opens, before the last file is closed - where much time, money and energy is spent on claims and applications that are eventually struck out as being totally without merit.   Following the case of Russell West v Gary Taylor-Duncan & Ors [2013] handed down on 12 September 2013, I thought a brief post on Civil Restraint Orders might be called for. In my experience, these orders are being sought more frequently. However, one must be careful to ensure that they are applying for the correct type of order and that they pass the relevant hurdles. It can be all too tempting to apply for the most extensive order too soon.   ·         A Limited Civil Restraint Order binds the Claimant from making further applications in the index claim without first obtaining permission.   ·         An Extended Civil Restraint Order (which is not the most “extensive” order, despite what the name may suggest) prevents the litigant from issuing further applications or claims    ·         Lastly, the General Civil Restraint Order prevents the litigant from issuing any claim or application in any of the specified courts without first obtaining permission. It is long since accepted that these orders do not infringe Article 6 of the European Convention on Human Rights because it does not bar the subject of the order from litigating; it simply limits their freedom to litigate so that they must obtain permission before issuing. It is often tempting to rush for the General Civil Restraint Order. But these orders are made in very limited circumstances. The case of West v Taylor-Duncan (2013) helpfully demonstrates the point. Mr West had persistently issued unmeritorious claims and re-litigated matters. The Court had no trouble concluding that a Civil Restraint Order of some kind was appropriate. The Court carefully reviewed the seven unmeritorious claims and found that there was a “common thread” between them – thus suggesting that an Extended CRO was appropriate.  Indeed, in some respects there was a significant overlap between the claims (in terms of cause of action and the facts), which is why the Master had stated that some of them were wholly without merit. On behalf of the Defendants it was argued that some of the claims were wider than the index claim, and sought a General Civil Restraint order on the basis that Mr West was now issuing claims based on a wider factual and legal basis. The Court found that there was some force in the Defendants’ argument that some of the claims went wider than the index claim. However, the matter was borderline and the court had to be satisfied that an extended Civil Restraint Order would not be appropriate in order to make a General CRO. There was no doubt that if Mr West continued in the same vein and brought wholly without merit claims not caught by an Extended CRO, a General CRO would suitable; however, it was not yet appropriate. Accordingly, Mr West was made subject to an Extended CRO. This illustrates that you must be prepared for the court to closely examine the earlier claims and applications (simply evidencing that the claims were struck as totally without merit is not sufficient), and you must satisfy the court that the less extensive order is not sufficient. If the Extended CRO proves insufficent, it remains open to you to make a further application for a General CRO during the course of the Extended CRO. This could mean more time, cost and energy - but you just might get there in the end! concerning any matter involving and/or relating to and/or touching upon and/or leading to the index proceedings without first obtaining permission.    

Failure to file costs budgets: a recent example in practice

Pursuant to CPR 3.12 and 3.13, unless the Court orders otherwise all parties (unless they are litigants in person) in a multi-track case commenced after 1st April 2013 must file and exchange costs budgets. The date for doing so will either be prescribed by the Notice of Proposed Allocation served by the Court pursuant to CPR 23(1) or, in the absence of a specific date, they must be exchanged and filed 7 days before the first CMC. The sanction for not filing a budget is contained in CPR 3.14 and is extraordinarily draconian: "Unless the Court orders otherwise, any party which fails file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees". This sanction grabbed the headlines recently in the Andrew Mitchell MP case (Mitchell v  News Group (2013) EWHC 2355), since his solicitors failed to file a budget on time and Master McCloud applied CPR 3.14 to its full effect (albeit only by analogy since the claim was a defamation action not strictly governed by the new Part 3 regime). She also gave permission of her own motion for the Claimant to appeal to the Court of Appeal. In Maisuria v London Borough of Ealing (Uxbridge CC, 18th September 2013, unreported) the Defendant did not file a costs budget until the day before the first CMC. However, when the Court sent out the CPR 23(1) notice of proposed allocation, the Defendant  completed the attached directions questionnaire indicating that the appropriate track was in dispute. The Defendant's case was that, based upon the existing medical evidence, the time estimate for trial (1 day) and the pleaded claim for special damage, it was a fast track case. The directions questionnaire contained a box stating that parties should file a costs budget in precedent H if the claim was "likely to be allocated to  the multi-track". The Defendant did not think it was likely, or indeed that the evidence supported a claim in excess of £25,000, and therefore elected not to do so. Shortly before the CMC, the Claimant served additional expert evidence indicating that his injury had not recovered in accordance with the original prognosis and was more serious than had been anticipated. In light of this deterioration, the Defendant accepted that the case should now be allocated to the multi-track and filed a Costs Budget on the day before the CMC. The Claimant argued that, by analogy with the Andrew Mitchell MP case, the Defendant should be limited to a costs budget comprising its Court fees, pursuant to CPR 3.14. DDJ Sofaer concluded, however, that the Mitchell case was distinguishable on its facts. Whereas in that case the reasons for not filing a budget related to the solicitors being under pressure of work and experiencing unexpected delays, in this case there had been a genuine jurisdictional dispute as to whether this was a multi-track case at all, and the Defendant had been served with the relevant evidence late in the day. The Court had a discretion built in to CPR 3.14 ('Unless the Court orders otherwise') and it was not necessary for the Defendant to make a separate application for relief from sanction. Accordingly, the Court approved the Defendant's (and Claimant's) budget and did not apply the sanction.

Relief from sanctions – le plus ça change?

As noted in previous blog entries, post April judges have been encouraged to take a much firmer line with applications for relief from sanctions – see for example Venulum Property Investments Ltd v Space Architecture Ltd [2013[ EWHC 1242 (TCC); Thevarajah and others v Riordan and others (9/08/13). However, Rayyan Al Iraq Co Ltd v Trans Victory Marine Inc (23/8/13) provides a useful counter-example for a party seeking relief for a relatively small error with little or no consequence. There, the claimant, through oversight, served the Particulars of Claim two days late. The claimant made a retrospective application to extend time, which was opposed. The judge noted the new CPR 3.9 and the change in the attitude of the courts, but held that this did not mean relief should be refused where that would be disproportionate and give the other side an unjustified windfall. In the circumstances, the judge did not consider the delay affected the administration of justice. The delay was caused by a mistake, while regrettable this was not egregious; an explanation had been given; the application had been made promptly. The claim had been brought in time. The judge also expressed the view that the defendant ought not to have sought to exploit this error. It seems to this author that the result might well have been different had there been a background of failure to comply with orders and less of a good explanation for the error. Is taking advantage of a procedural or court ordered time bar an unjustified windfall? In the context of limitation, in Howard v Fawcetts Lord Scott (at 32) explained that time limits were an attempt to strike a balance between competing interests. But it must be right that, in the case of a very short delay for which there is a good explanation; absent a history of procedural failure; and if there is no prejudice to the other side in granting relief, not doing so would be to provide the other side with a windfall.  

CPR 3.14 - How Explicit and Draconian?

The notes in the White Book below Civil Procedure Rule 3.14 suggests the “rule is explicit and the consequences of failure to comply Draconian”. The rule itself provides that “Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.” It has yet to be tested by way of an appeal to the Court of Appeal (despite the author’s best efforts on several occasions). However it would appear that guidance is likely to be forthcoming soon. In an interesting twist to an interesting case, the High Court limited costs awarded to Andrew Mitchell MP in his litigation against The Sun to applicable court fees only due to his "absolute failure" to discuss budget assumptions with the newspaper and failure to ask for additional time in advance. At a case management conference in June of this year, Mitchell and The Sun were ordered to exchange costs budges as per the new CPR regime. Mr Mitchell’s lawyers however failed to do so and thus the court, in accordance with the explicit and draconian wording of CPR 3.14, held that he would thus be "limited to a budget consisting of the applicable court fees for his claim". After hearing evidence about the reasons behind the non-compliance the sanction was not lifted. Master McCloud took a strict approach and is widely reported as holding that: “Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC even at relatively short notice if proper planning has been done…", and that "The court must now, as part of dealing with cases justly, ensure that cases are dealt with at proportionate cost and so as to ensure compliance with rules, orders and practice directions…" The Master noted that it would have been "far more likely" that the sanction would have been lifted against Mitchell before the reform of the CPR in this regard. However she said that in "the absence of authority on precisely how strict the courts should be and in what circumstances", and "[i]t will be for the appeal court to determine whether such a strict approach is appropriate". That appeal would be "on the basis that the severe nature of the sanction which I have imposed in giving effect to [the costs reforms] ... are of necessity not backed by specific authority on point, and the risk of injustice if I were adopting too strict an approach is such as to provide 'some other compelling reason' for an appeal to be heard”.

CPRwatch: relief from sanctions

Does the original checklist under rule 3.9 (relief from sanctions) have any role now? That question was considered by Hildyard J in Thevarajah v Riordan (9th August 2013, unreported). The Claimant sought to strike out the Defendant’s Defence for failure to comply with an unless order in relation to disclosure. The Defendant sought relief from sanctions under CPR r. 3.9. The Defendant admitted that he had failed to give disclosure as ordered and the judge found that there were serious failings. The judge found that, although the checklist of relevant considerations under r.3.9 had been removed and replaced, they were nonetheless matters which the court needed to consider as they enabled the court to consider whether relief from sanctions was appropriate under the new r.3.9. Lest there be any doubt that he was reverting to the old ways of doing things the judge emphasised that the new r. 3.9 was not less rigorous but more so: the court should be slow under the new r.3.9 to draw the conclusion that relief from sanctions was appropriate and just. Once non-compliance with an unless order was established, what was required for relief from sanctions was a material change in circumstances (Tarn Insurance Services Ltd v Kirby [2009] EWCA Civ 19). There was no material change in circumstances in Thevarajah; in fact the Defendant’s position had worsened. Further, the Defendant was unable to show he had taken reasonable steps to comply with the unless order and therefore no relief was granted. This case highlights the fact that fundamentally rule 3.9 has not changed. The most important part of the old and the new rule is the emphasis on the court considering 'all the circumstances' so as to deal with the application justly. The original checklist was cumbersome but nonetheless a helpful steer as to what circumstances might be relevant. The new checklist is much less helpful: it merely repeats what a court must already take account of under the overriding objective. A judge who only took account of the need for efficiency, proportionality and compliance with court orders would be failing to take account of all the circumstances. Judges know that they are supposed to be tougher, but ultimately what most of them consider to be just in 'all the circumstances' is unlikely to have changed despite the best efforts of Jackson L.J.

Litigants in Person, the Judges and You!

      According to the government's own figures, 623,000 of the 1,000,000 people who previously received public funding each year ceased to be eligible for such assistance when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 came into force on 1 April 2013.   On 5 July 2013 the Judicial Working Group on Litigants in Person (LIPs) published its report on how the judiciary proposes to deal with the massive increase in LIPs in courts and tribunals. It merits careful reading by all practitioners.    www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf    The challenges are immense and will be further increased by the impending rise in the financial limit for the small claims track from £5,000 to £10,000. A doubling of this limit will inevitably mean more cases fall within the small claims track where public funding is not available. As for alternative sources of assistance, the Citizens Advice Bureau estimates that local advice and community based services will lose over 77% of their public funding.    In 2012, District Judge Richard Chapman, the immediate past president of the Association of Her Majesty’s District Judges observed that already:   “Judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 or the Family Procedure Rules 2010 and have breached most of the case management directions”.    The report recommends that the Ministry of Justice and Her Majesty’s Court and Tribunal Service should devote the necessary time and resources to producing, with judicial involvement, appropriate materials, including audio-visual materials, to inform LIPs what is required of them and what they can expect when they go to court as well as reviewing the information that is currently publically accessible on the various judicial websites – see [2.8] and [3.49-3.52] of the report.   The Judicial College should also urgently assess the  feasibility of providing training on LIPs –  a sort of “Quick Lit” course for judges – together with developing a  “litigants in person toolkit” utilising the existing judicial guidance – see [2.9] and [4.9-4.19] of the report.   More far reaching proposals include:   1.      The inclusion in the CPR of a dedicated rule which makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person.  2.      The introduction of a power into Rule 3.1 CPR to permit the court to direct, where at least one party is an LIP, that proceedings should be conducted as a more inquisitorial form of process.  3.      The introduction of a specific general practice direction or new rule in the CPR to address, without creating a fully inquisitorial form of procedure, the needs of  LIPs in obtaining access to justice whilst enabling  courts to manage cases consistently – see [2.10] and [5.11] of the report.    The stark reality is that in some courts and tribunals LIPs will be the rule rather than the exception. This will inevitably slow down and drive up the cost of proceedings and take up valuable judicial time. Equally inevitably, the call will surely go out from the judges to practitioners at all levels for assistance in responding to the challenges that lie ahead.   Image – www.123rf.com

Jackson: when is a deadline for an order not 'written in stone'?

The case of Re Atrium Training Services Limited [2013] EWHC 1562 (Ch) is the latest judgment from the High Court which considers the new rules. The judge was faced with an application to extend time to comply with a court order for a massive disclosure exercise. This came against a background of a history of breaches of a timetable set by the court. The judge underlined the strictness of the new regime but tempered it with comments which are likely to be cited for a long time to come about the dates for compliance with some court orders not being ‘sensibly regarded as written in stone’. He granted the extension of time sought but made an Unless order for compliance. The judge was clear that the application was for an extension of time made before the deadline for compliance with the court order had passed. It was therefore to be decided under the overriding objective and not as an application for relief of sanctions. The Court of Appeal set out the guidelines for applications for extensions of time in Robert v Momentum Services Ltd [2003] EWCA Civ 299. Since then the overriding objective has been amended to include the enforcement of and compliance with orders. Henderson J said that a court would examine an application for an extension more rigorously than it might have done before 1st April and he discouraged the easy assumption that an extension would be granted just because there was no prejudice to the other side. However Henderson J went on to counterbalance this by saying that it was important not to go to the other extreme and to avoid encouraging unreasonable opposition to extensions which are applied for in time and which involve no significant prejudice to other parties. He said “in cases of that nature, considerations of cost and proportionality are highly relevant, and the wider interests of justice are likely to be better served by a sensible agreement, or a short unopposed hearing, than by the adoption of entrenched positions and the expenditure of much money and court time in preparing for and dealing with an application that could have been avoided.” In fact he went even further saying: “although all court orders mean what they say, and must be complied with even if made by consent, there are some orders relating to the completion of specified stages in preparation for trial (such as disclosure, the exchange of witness statements, or a timetable for expert evidence) where there may be so many imponderables when the order is made that the date for compliance cannot sensibly be regarded as written in stone. Everything will always depend on the circumstances of the particular case, and the stage in proceedings when the order is made, but in many such cases it should be understood that there may be a need for reasonable extensions of time or other adjustments as the matter develops. It would, I think, be unfortunate if the new and salutary emphasis on compliance with orders were to lead to a situation where, in cases of the general type I have described, a reasonable request for an extension of time were to be rejected in the hope that the court might be persuaded to refuse any extension at all.”   It is undoubtedly better to be applying for an extension of time before a deadline expires than for relief from sanctions afterwards. The pragmatic approach of Henderson J will be particularly useful if you find yourself in that situation.

Caselaw since 1st April 2013 - leopards and spots?

  The case of Venulum Property Investments Ltd v Space Architecture Limited [2013] EWHC 1242 (TCC) concerned a relief from sanctions application under r. 3.9. The decision was in fact made under the old rules because the application was made prior to 1st April 2013 but the judge (Edwards-Stuart J) took the new regime into account concluding: “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. I therefore refuse this application”. The claimant’s application was for an extension of time for serving the Particulars of Claim. The Claim Form had been issued on 12th November 2012 but served on the very last day for service (12th March 2013). The Particulars of Claim were wrongly served 14 days later – the Claimant’s solicitors forgetting that the long stop deadline for service is four months after the issue of the Claim Form. In the judgment there was a predictable citation in the judgment from Fred Perry v Brands Plaza Trading [2012] EWCA Civ 224 (Lewison LJ): “… courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed.” There were also predictable citations from Hashtroodi v Hancock [2004] 1 W.L.R. 3206 on courting disaster by leaving issue until expiry of the limitation period and failure to serve (due to incompetence on the part of solicitors) being a powerful reason not to grant and extension of time. The judge looked at all the circumstances and refused relief due to the weakness of the Claimant’s case, poor pleading and a lengthy and unexplained delay of 5 years before instructing solicitors. The tough new regime undoubtedly helped the defendant but one is left with a doubt as to whether the outcome would have been any different pre Jackson. (Image courtesy of freefoto.com - Photographer: Kristin de Moore)    

New CPR 3.9 - Ending the "culture of toleration of delay and non-compliance with court orders" and a "different justice"?

Tomorrow as the last working day before April, shall mark the end of an era. Not a particularly long era. But all of fourteen years of the Civil Procedure Rules as we have known them. From the 1st April 2013, the CPR will be significantly altered for every civil litigant. Most pertinently, the Overriding Objective will now include specific reference to undertaking litigation at proportionate cost, and ensuring compliance with (interlocutory) orders of the court. In the latter vein, CPR 3.9 “Relief from Sanctions” is being entirely reformed. Gone will be the checklist, oft-treated as a checklist by judges, to be replaced by a much broader discretion as to whether to grant relief, with the judge specifically referred to the need for litigation to be conducted efficiently and at proportionate cost, and to enforce compliance with rules, practice directions and orders.  Lord Dyson, the Master of the Rolls in a speech last week to District Judges at their annual seminar reminded us that the change to CPR 3.9 in reflecting the new Overriding Objective was to simplify the rule for when relief from sanctions should be granted. The removal of the checklist was something, he argued, would improve the clarity of decision making and decrease the scope of ‘satellite litigation’ – presumably referring to appeals for failing to consider appropriately all aspects of the former checklist. Lord Dyson argued that when considering applications for relief, for too long the courts have (albeit understandingly) erred on allowing the principle of individual justice to trump any real consideration of the effect that this may have on the system of justice or upon other court users. He quotes Lord Justice Jackson in Mannion v Ginty [2012] EWCA Civ 1667 at [18] as referring to “a culture of toleration of delay and non-compliance with court orders” in the civil justice system. It is suggested that the changes to CPR 3.9 will end this culture (which the CPR itself was designed to curtail). The Master of the Rolls suggests that the more robust future attitude to rule-compliance and relief from sanction, is intended to ensure justice is done. However, the new CPR defines a different acknowledgement and achievement of justice. He states that parties can no longer expect indulgence if they fail to comply with procedural obligations, and that efficiency, proportionality and consideration of other litigants and court resources are to constitute new cornerstones to this ‘different justice’.  

Shut out: The UK Supreme Court’s first "secret hearing"

Bank Mellat v HM Treasury UKSC 2011/0040     The Supreme Court held a hearing in secret today, for the first time in its history.   According to the BBC, the justices spent 45 minutes in a locked session with a security guard stood outside the door to prevent anyone from entering. The hearing was so sensitive that the justices had to leave one courtroom and set up in another which had greater soundproofing.   The hearing arises out of the Treasury’s decision in 2010 to ban an Iranian bank from operating in the UK, using powers under the Counter-Terrorism Act 2008. The government alleged that the bank had been indirectly involved in financing companies linked to the Iranian nuclear programme.   At first instance, Mr Justice Mitting permitted some of the government’s evidence to be adduced behind closed doors on grounds that it contained sensitive material that may compromise national security. The first instance judgment was therefore produced in two drafts, with only the redacted version being made available to the public.   A nine-strong panel decided that the court did have jurisdiction to consider the closed judgment, but would only do so if persuaded (on the basis of submissions in open court) that it was necessary for the purpose of fairly disposing of the appeal. At that stage the court was not so persuaded. Lord Hope described the government’s refusal to spell out even its basic national security case in open court as ‘cloak and dagger stuff’ that was ‘difficult to swallow’.   The court was reluctantly persuaded this morning that it was indeed necessary to consider the closed judgment and that this would necessitate a closed hearing. According to Lord Neuberger ‘unless and until an appellate court sees the judgment, it often cannot be sure its contents will be irrelevant or that its contents have been fully gisted’. He went on ‘no doubt in due course when we have completed the closed hearing...we will have quite a few things to say about this unhappy procedure.’   The court clearly has it in mind to use this episode to issue guidance to other courts faced with similar requests for a closed hearing. But whatever tests and safeguards are laid down, the use of secret courts is bound to become more widespread with the passage of the Justice and Security Bill.   Where litigants are prevented from seeing the State's evidence against them, hearing its submissions on that evidence, or understanding what part that evidence played in their claim being dismissed, the balance of justice is dangerously skewed. And far from being immune to these changes, PI litigation, employers’ liability in particular (for instance, claims by wounded servicemen against the MoD) may yet become the area of law most acutely affected.