Procedural compliance: expectations post-Mitchell?

Distressing news given the applicable court fees were in the region of £2,000, compared with the probable cost of proceedings estimated at £500,000.

Master McCloud refused Mitchell’s application for relief saying: “The explanations put forward by the claimant’s solicitors are not unusual ones. Pressure of work, a small firm, unexpected delays with counsel and so on. These things happen, and I have no doubt they have happened here.

“However, even before the advent of the new rules, the failure of solicitors was generally not treated as in itself a good excuse… such explanations carry even less weight in the post-Jackson environment.”

In Bank of Ireland and Anr v Philip Pank Partnership, the defendant submitted that the claimant’s incomplete statement of truth equated to a failure to comply with procedure. Mr Justice Stuart-Smith rejected the defendant’s argument: “There is nothing in the rules or practice directions which require any and every failure to comply with the formal requirements for budgets as rendering the budget a nullity, as opposed to being one which is subject to an irregularity…”

In Wain v Gloucestershire County Council the claimant argued that the defendants breached CPR 3.14 and were limited to recovery of court fees alone. The defendant’s costs budget had been filed a day late.

HHJ David Grant said the breach of civil procedure rules was considered trivial. The courts adopted the ‘trivial’ test as a yardstick for compliance after Mitchell’s Court of Appeal ruling. Grant said both parties were “perfectly able” to deal with costs management at the hearing despite the day’s delay.

He said: “Perhaps part of the problem in cases involving late filing of costs budgets is that the consequences for doing so as now stated in the CPR rule 3.14 are extremely severe. Whether that should remain so is of course a matter for the rules committee.”

In Burt v Christie, District Judge Lamb decided that the defendant’s costs estimate should not be accepted as it was filed after the scheduled deadline. The defendant was required to file a budget by 16 January, but tried to serve it a day later by fax. The budget did not reach the court until 20 January (the next working day).

Lamb determined that the late filing was not ‘trivial’ stating: “Failure to interpret the unambiguous rules of the court correctly, in this case CPR 2.8 in relation to calculation of seven days, clearly cannot amount to a good reason within Mitchell.”

Why risk being a hostage to fortune in these uncertain post Jackson times? Grapple the requirement for ‘procedural compliance’ until Mitchell is clarified and/or the Rules Committee provide
further guidance. SJ

James Godden is a solicitor at Gordon Brown Law Firm

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