New civil justice reforms will not excuse silly mistakes

“We hope that our decision will send out a clear message,” said Lord Dyson in Mitchell v New Group Newspapers Ltd, his judgment proving that courts will enforce the new civil justice reforms robustly. Where a party fails to comply with a rule, practice direction or court order, relief from sanctions will not be granted unless there are very compelling reasons, so firms must take this requirement seriously.

While Mitchell dealt with costs budgeting, the scope is wider, of course. In Durrant v Avon & Somerset Constabulary, the defendant belatedly applied for relief from sanctions applied by the court (that witness statements, served late, could not be relied on) and it was not granted. The ramifications are grave, particularly where the evidence in question is crucial to the case. It is therefore imperative that firms take heed of this decision or face sanctions from the court and resulting complaints/claims from clients.

Consider a hypothetical situation where a firm knows it is about to miss a deadline for serving one of its witness statements because the witness is ill. A request for an extension from the other side is refused. The end result is that the court orders that only witness statements served before the deadline may be relied on.

You have kept the client informed throughout the process and they are not happy with the situation (even though it was originally outside of your control). Of course every complaint should be investigated and dealt with, but, most importantly, you want to keep the client satisfied, so you discuss and agree the course of action.

It is imperative to act immediately or face the possibility that your client will not be entitled to rely on the statement. The guidelines issued by the court make it clear that relief will only be granted: (a) for trivial breaches where the application for relief is made promptly (the examples given by the court were failures of form rather than substance, or where a party narrowly missed a deadline but otherwise complies with the terms of an order) and (b) where there are good reasons for the default.

In this situation, an application for relief from sanctions made immediately in these circumstances should result in a different situation from that in Durrant.

As ever, the key to avoiding this is prevention rather than cure. In view of the robust approach taken, firms need to revisit their policies and procedures. It has never been more important to diarise reminders for deadlines and make applications in good time.

Further, old checklists for applications for relief from sanctions should be thrown away and new ones drafted that adhere to the updated guidelines. It is also a good idea to advise clients/witnesses/experts in writing about the timetable, the importance of their timely cooperation on matters and the implications of non-compliance.

Eleanor Kilner is a solicitor in the professional risk team at Weightmans

www.weightmans.com

SJ