Restoring common sense

In the aftermath of Mitchell ?v News Group Newspapers, there followed a number of cases in which the courts felt obliged to strike out claims for minor errors in complying with deadlines. This injustice was re-dressed in Denton v TH White Limited.

Yet a recent decision of the High Court appears to signify that common sense has now returned and that parties taking bad points risk being suitably punished.

In Viridor Waste Management ?v Veolia Environmental Services Limited, Mr Justice Popplewell granted relief from sanctions and a retrospective time extension to serve particulars ?of claim and dismissed an application to strike out the case.

The deadline for service of particulars was 14 January ?2015. That deadline was of importance because any new claim after this date would have been time-barred. 

The claimant’s solicitor filed the particulars on 12 January and instructed a secretary to post them to the defendant ?that day. In error, the particulars were posted on 13 January and, to compound the error, were sent by second class post, which meant they did not arrive until 15 January.

The defendant argued that second class post did not constitute valid service. The claimant therefore re-served ?the particulars on 19 January by hand, email, and first class post and applied for a retrospective time extension, which the defendant resisted and applied to strike out the claim.??

The court’s approach

The judge applied the test in ?the Civil Procedure Rules part 3.9 pragmatically, noting that the ultimate purpose of service is to bring the document to the other party’s attention. In this case, this had been done by 15 January, just hours after the deadline expired. The judge considered this important when assessing the significance of the default, rather than when service was formally effected. 

Popplewell J rejected the argument that any delay in service is automatically significant because of the document’s importance. He did not consider this specific breach to be significant, noting that the circumstances were in favour of allowing the extension and granting relief.

Accordingly, the judge penalised the defendant ?with indemnity costs for unreasonably opposing the claimant’s application.??

Where does this leave us?

There remains some ?uncertainty as to whether the courts are now entirely willing to grant relief from sanctions ?for breaches of orders or procedural rules, in circumstances where those same courts might have imposed tough sanctions in the period immediately following Mitchell. 

It would, therefore, certainly be unwise for practitioners to disregard decisions of the courts made in the quite ?recent past. 

One such example can ?be found in Associated Electrical Industries Limited v Alstom UK, which shared certain features with Viridor. In that decision, ?the court struck out a claim because the claimant was 20 ?days late in serving its particulars. 

The claimant served its?claim form, stating that its particulars would follow if ?the defendant filed an acknowledgement ?of service indicating an intention to defend. The defendant did so on 1 October 2013, affording the claimant 28 days to serve particulars. However, the claimant’s solicitor only discovered on 8 October that the acknowledgement of service had been filed. 

On 29 October, an email was sent by the claimant’s solicitors ?to the defendant’s, requesting ?a 14-day extension to serve particulars. They responded by applying to strike out the claim. Thereafter, the claimant served ?its particulars on 18 November, some 20 days after the deadline.

The court deemed a delay of 20 days and a failure to request or apply for a time extension before 29 October meant the non-compliance was neither trivial nor justifiable. It noted the delay between 1 and 8 October was the court’s fault, but the claimant’s failure to serve the particulars before 29 October could not be excused. ?

Considerations for practitioners

?It is increasingly clear that the courts are prepared to make pragmatic decisions to avoid ?the manifestly unjust outcomes brought about by Mitchell. However, practitioners would also be wise to bear in mind the court’s statement in the case that ‘… once the new culture is accepted, there should be less satellite litigation, not more.’

Where circumstances necessitate it, claimants must be ready to request time extensions promptly from defendants and, ?if necessary, swiftly make applications to court. But it is clear defendants facing such requests must think carefully about whether resisting them ?will be regarded as acceptance of the new culture or opportunistic satellite litigation.

Andy McGregor, is a committee member of the LSLA and a partner at Reynolds Porter Chamberlain (RPC) Adam Forster is an associate at RPC www.lsla.co.uk