No relief in sight

It's a situation that will be familiar to many practitioners. You've spent months preparing your case, working around the clock to ensure you comply with the court's directions - only to find your opponents have taken a rather more relaxed approach. Despite your protests, the court seems reluctant to penalise the other side in any meaningful way, whether those failures are due to incompetence or wilful disregard for the court. Why should a client who has complied with every instruction issued by the court (and incurred costs in so doing) suffer while their opponent idles?

This sense of frustration is, it seems, shared by the judiciary and is at the heart of several of the key reforms to the Civil Procedure Rules which came into force on 1 April 2013.

Judicial perspective

Judges have spoken out in protest against delays in litigation in a series of high-profile cases, most recently at the case management conference of R (on the Application of Rawlinson v Hunter Trustees SA & Ors) v Central Criminal Court and Serious Fraud Office [2012] EWHC 3218 (Admin) at which Eder J said: "I am disappointed, let it be said openly, with regard to the approach by all parties to the necessity of dealing with matters speedily These kinds of delays are completely unacceptable in modern litigation."

Lewison LJ struck a similar note in his judgment on Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd & Ors [2012] EWCA Civ 224, quoting from Jackson LJ's report on costs in civil litigation and noting that: "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 justice system. The balance therefore needs to be redressed."

It is also worth noting the very clear indications given by the Court of Appeal in a string of recent cases that it will support first-instance judges who make "robust but fair case management decisions" (to quote Jackson LJ in his report on Civil Litigation Costs). This quotation has been cited in a series of recent Court of Appeal cases, among them Deripaska v Cherney [2012] EWCA Civ 1235, Mannion v Ginty [2012] EWCA Civ 1667 and Stokors SA & Others v IG Markets Ltd [2012] EWCA Civ 1706. The message seems clear - first instance judges who clamp down on dilatory conduct can expect the support of the Court of Appeal.

The clearest codification of this attitude is contained in the revised overriding objective (CPR 1.1 (2) (f)).

Implementation of the overriding objective now extends to "enforcing compliance with rules, practice directions and orders". As of 1 April therefore, the courts must be proactive in ensuring that the parties abide by the CPR and any orders made by the courts pursuant to their (newly enhanced) costs and case management powers.

The relief from sanctions rules contained in CPR 3.9 have been distilled - out goes the old checklist of multiple factors, replaced by a neater formulation, which requires that:

"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."

There is little room for doubt here: the courts are sending out a clear message that rules, practice orders and court orders are there to be obeyed.

There is also a new CPR 3.1(8) which allows the court to contact the parties from time to time in order to monitor compliance with any such directions. Parties must respond promptly to any such enquiries from the court. Presumably this is intended to prevent matters from escalating to a point where parties need to apply for relief from sanctions (prevention, rather than cure); quite how much time or manpower the courts will be able or willing to expend in using this power remains to be seen.

Not to be trifled with

In Fred Perry (Holdings) Ltd (relating to the sale of counterfeit clothing bearing the Fred Perry trade mark), the claimant faced an opponent who failed to comply with numerous court orders, including two "unless orders". The defendants had their defences struck out and judgment was entered for the claimant in December 2010. Fred Perry then applied for a final injunction and an inquiry as to damages, leading to a last-minute application by the defendants for relief from sanctions.

Mann J refused the defendants' application for relief. He also refused them permission to appeal. The defendants then made an out-of-time application to the Court of Appeal. Lord Neuberger granted permission, on the basis that it provided an opportunity for the Court of Appeal to flag its support for robust first instance decisions and draw attention to changes to CPR 3.9.

In dismissing the appeal, Jackson LJ noted: "There is a concern that relief against sanctions is being granted too readily at the present time. Such a culture of delay and non-compliance is injurious to the civil justice system and to litigants generally Litigants who substantially disregard court orders or the requirements of the Civil Procedure Rules will receive significantly less indulgence than hitherto."

Anna Edwards-Stuart, the barrister who successfully represented Fred Perry, believes the changes to CPR 3.9 represent a significant advance. She says: "Rules are rules. They can be harsh. They can be unfair, but parties save money by doing things on time, at the first time of asking. It is not good enough to allow parties to leave it until the last moment to comply The right to engage in litigation is dependent on everyone playing by the rules."

These are not changes to trifle with. The litigation landscape has changed and the courts are set to ensure that its new features are respected and remain in place. The new, binary approach is apparent in many different corners of the CPR. For example, a failure to file the new directions questionnaire may result in strike out; a failure to file and serve a costs budget will result in your costs being irrecoverable (save for the court fee). These are draconian sanctions, and it seems that there will be fewer 'get out of jail free' cards available under the new relief from sanctions regime.

The revised rules are a full-square attack on the culture of "delays and non-compliance", which should provide the well-organised litigant with a useful additional weapon. They should also provide the less well-organised with a clear incentive to get their house in order, and prevent some of the less laudable procedural posturing which has been contributing to the delays and expense of litigation in recent times.