Jackson LJ considered case management decisions in his report on costs in civil litigation. He said:-
"...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."
Earlier this year, in Fred Perry v Brands Plaza Trading Limited [EWCA] 2012 Civ 224, the Court of Appeal agreed and applied CPR 3.9 in a way which attempted to redress that balance.
The Defendant had been in breach of a series of orders. Unless orders had been made, the Defendant had not complied and the defence was struck out. The Defendant applied for relief from sanctions.
The Court of Appeal reiterated that the interests of the administration of justice - the first item on the CPR 3.9 checklist - requires that parties comply with court orders, and particularly so where the order in question is an Unless order. This is a welcome reminder that the interests of the administration of justice are not necessarily the same as the interests of justice.
The Court of Appeal was critical of the Defendant’s attempt to argue that the Unless should not have been made or was too onerous. It was inappropriate to make a collateral attack on the order in an application for relief from sanctions: if the Defendant did not like the order its remedy was to appeal, which it had not done.
The judgment emphasised that the first instance judge has a wide discretion when considering an application for relief from sanctions. The Court of Appeal approved of the judge’s exercise of discretion, and noted that judges who made robust but fair case management decisions should be supported.
Lord Justice Jackson was on the panel and made the further point that CPR 3.9 is due to change with effect from 1st April 2013. The familiar checklist is due to be replaced with the following:-
"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider the circumstances of the case, so as to enable it to deal justly with the application including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and court orders."
Lord Justice Jackson commented that after 1st April 2013,
“litigants who substantially disregard court orders or the requirements of the Civil Procedure Rules will receive significantly less indulgence than hitherto”.