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Compliance with Rules post 1 April 2013

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The legal landscape post 1 April and the new Jackson reforms, is a stricter regime where compliance with the rules and orders of the court is paramount.

In Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd & Anor [2012] EWCA Civ 224, Lord Justice Jackson noted that “… such a culture of delay and non-compliance is injurious to the civil justice systems and to litigants generally … It is currently anticipated … on 1 April 2013 … litigants who substantially disregard court orders or the requirements of the Civil Procedure Rules will receive significantly less indulgence than hitherto ...”

Venulum Property v Space Architecture [2013] EWHC 1242 (TCC)

This matter concerned an application for an extension of time in which to serve Particulars of Claim. The claim form had been issued on 12 November 2012 but was not served in time. It was served with effect from 12 March 2013 – the last day for service in accordance with the CPR 7.5(1).

The Particulars of Claim were not served at the same time as the claim form. The solicitor believed that they still had 14 days in which to serve the Particulars of Claim. Mistakenly, the solicitor has believed this to be so, based on CPR 7.4 (1) and(2). In actual fact the deadline in which to serve Particulars of Claim is four months after the issue of the claim form.The Court however adopted a strict approach:-

“…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.”

Fons HF v Corporal Ltd [2013] EWHC 1278 (Ch)

This matter centred on an application to extend time for service of witness statement.

His Honour Judge Pelling noted, “…this case comes before me after 1st April and, thus, after the date when the revised overriding objective contained in the amended Civil Procedure Rules comes into effect…subparagraph (f) to CPR r.1.1(2) is significant for present purposes…Dealing with a case justly and at proportionate cost includes, so far as is practicable …enforcing compliance with rules, practice directions and order.”

In the context of the proceedings, it had been ordered (on the 6th October 2011) that witness statements be exchanged 13 weeks after the date on which security for costs was provided by the claimant. Various extensions between the Parties meant that the exchange of witness statements was to happen 18 April 2013. At the time of this judgment it happened to be three weeks after this date.

HH Judge Pelling stated that. “…I am only persuaded to extend the time for filing of witness statements because this hearing is taking place only a short while after the amendment to the CPR and because the period that has elapsed since the final extension expired is relatively short. However all Parties and the wider litigation world should be aware that all courts at all levels are now required to take a much stricter view of the failure of Parties to comply with directions, particularly where the failure to comply is likely to lead into a waste of the limited resources made available to those with cases to litigate.”

“…I propose… to extend the time for complying with the order … for the filing of witness statements until 4pm tomorrow. In default of any party failing to comply with that order, that party shall be debarred from relying upon evidence at trial.”

It is clear from both matters that post 1 April, anunwavering approach will be adopted by the Judiciary with regards to compliance with the rules.

Professor Dominic Regan, City Law School, was quoted as saying “In these recent cases the Judges were kind, but this is absolutely the last chance saloon for forgiveness from judges.” Professor Regan also noted in this regard that the judgment in Sylvia Henry v News Group Newspapers Ltd [2013] EWCA Civ 19“creates the erroneous impression that a party which outspends the approved budget can still recover full costs. If only.”

Solicitors moving forward must give credence to the rules and time frames in which they must act and advise their clients accordingly. Should solicitors, as in Venulum, ‘mistakenly’ interpret rules or fail to comply, such behaviour will beto the detriment of their client’s position. This applies equally to costs budgeting as it does all other parts in proceedings.

The court will no longer tolerate non-compliance – the interest of the court lies in “enforcing compliance with rules, practice directions and order (s)” not in providing a helping hand to a solicitor who cannot adequately act for his client.

For advice or more information, contact Elizabeth Elliott.