Policing the profession

"Totalitarian", "zero-tolerance", "disciplinarian" are words that you would readily associate with the police and their policies rather that judgments handed down by Lords of the Court of Appeal. But last month, the Court of Appeal gave judgment on the long-awaited "plebgate" libel appeal and these were the words used to describe their deliberations.

The claimant solicitors, Atkins Thomson, had not filed the cost budget on behalf of their client, Andrew Mitchell MP 7 days before the date of the hearing for which the costs budgets are required as stipulated by section 4.2 of Practice Direction 51D - Defamation Proceedings Costs and Management Scheme and as a result the scheduled case management and cost budgeting hearing before Master McCloud was aborted. Master McCloud ordered that as the cost budget was filed six days late that the cost budget for the claimants would be limited to court fees. The claimant solicitors appealed firstly, against the order to limit costs to the court fees and secondly, against the Master's decision not to grant relief from sanctions pursuant to CPR section 3.9.

The Court of Appeal unanimously dismissed both appeals at paragraphs 59 and 60 of the judgment on the basis that "The defaults by the claimant's solicitors were not minor or trivial and there was no good excuse for them" and that they needed to "send out a clear message" to legal representatives "to achieve a change in culture". The culture being the Jackson reforms which came into force on 1 April 2013.

But how can a claim issued on 7 March 2013, under the pilot scheme for defamation proceedings invoke the sanctions of the Jackson reforms?

The pilot operated from 1 October 2011 to 31 March 2013 in the Royal Courts of Justice and the District Registry of Manchester and had no specified sanction for late filing of cost budgets. The objective of the pilot was "to manage the litigation so that the costs of each party are proportionate to the value of the claim and the reputational issues at stake and so that the parties are on an equal footing".

The objective was not to act as a "warning" to legal representatives that draconian sanctions would be applied for late filing of cost budgets post 1 April 2013, but to test how the cost budget could work in practice.

The overriding objective is "to deal with cases justly and at proportionate cost". But was it just to limit costs to court fees under the circumstances? For the parties to be able to comply with the Practice Direction, the cost budget needed to be filed on Monday, 10 June 2013. This meant the parties had two working days to prepare a cost budget from notification of the hearing on Thursday, 6 June 2013. The defendant's solicitors used cost lawyers to prepare its cost budget and filed their budget on Tuesday, 11 June 2013. The claimant solicitors prepared their cost budget in-house and filed theirs on the day before the hearing.

It is hardly surprising that both parties struggled to comply with the order. The defendant's solicitors also filed the cost budget late but you will not find a mention of this non-compliance in the judgment. On the contrary at paragraph 17 of the judgment, it seems that Master McCloud was under the impression that the defendants "were well able to deal with this in the time allotted". I would have thought that any solicitor's firm would have struggled to comply with such a tight deadline and in those circumstances that relief from sanction would be granted. The test is after all whether a court order can be complied with in practice. It appears that due to the tight deadline that compliance was not possible in this case.

It is also concerning to read the criticism of first instance judges who have not adopted the Court of Appeal's "new approach" but instead continued to do "justice between the parties in the individual case". Walker J in Ian Wyche v Careforce Group Plc [2013] EWHC 3282 stated that court had to be flexible in considering all the circumstances of the case and not "applying rules unthinkingly without any allowance for human error" and Andrew Smith J in Raayan Al Iraq Co Ltd v Trans Victory Martine Inc [2013] EWHC 2696 (Comm) did not "accept that the change in the Rule or a change in the attitude or approach of the courts to applications of this kind means that relief from sanctions will be refused even where injustice would result".

The judgment by the Court of Appeal in Mr Mitchell's claim is not just "harsh" but also goes against the long established principle of due process and that"not only must justice be done; it must also be seen to be done".

The Jackson Reforms were not "intended to ensure that justice can be done in the majority of cases", but justice in all cases. It seems that on this occasion the Court of Appeal has set about making its own rules, rather than applying the rules. It is therefore no surprise that the legal profession has concerns about the future impact of this judgment, but I am more concerned about why the Court of Appeal has strayed into policy making when their remit is to apply and administer the laws that Parliament has made.