Mitchell is still providing a rich source of material for articles, and concern for those worried about being the subject of the next big professional negligence action…
Following on from Andrew’s post last week, I recently encountered the scenario where one party sought to vary a Court timetable of directions but it was not agreed.
Clearly, if the directions themselves contained an express sanction then it would have been a simple matter of a ‘new’ CPR 3.9 Application for relief from the sanction. However, the direction was a standard one that merely stated that compliance should have been by a certain time.
This raises the question of if a party is in default should it make a 3.9 Application or a 3.1 Application? 3.1 expressly refers to the possibility of an application being made after the date for compliance. Nevertheless, it is probable that in reality the 3.1 Application would entail consideration of the ‘new’ 3.9 in any event, given the specific amendments to the overriding objective (as to complying with rules and orders) and hence be little different to Mitchell. Further, there is the question of what exactly would be the effect of failing to comply? There have been many applications for striking out but the starting point is merely a refusal to allow the party in breach permission to rely upon the subject matter of the direction: such as witness evidence in my case. It is to be noted that there is a specific built-in sanction already for failing to serve witness evidence on time: CPR 3.10.
It seems the Courts are tending nowadays to view any breach of any direction without good cause as one which requires an early Application. The Applications are usually brought still under 3.1 if within time but if the Application is made after the date for compliance it is tempting to apply in the alternative under 3.9. The new overriding objective does not alter the need for the Courts to make its assessment of how to do justice to the parties. Often, it seems an exceedingly short extension of time is considered the correct approach if there is good reason for the delay, backed up by an Unless Order: viz. Fons v Corporal (2013) EWHC 1278. That was the result in my case. Many courts have effectively disregarded the old prejudice to the other party test. It is unclear if anything other than a strict approach will ever will be taken otherwise, as the Court of Appeal has pointed out, the Jackson Reforms will have no teeth.
What has become abundantly clear though, is that failing to comply with any Court order is more serious than a year ago and if you can pre-empt any breach with an Application (with good evidence in support!), then you will be in a much better position. Opponents are less likely to agree variations/extensions nowadays since they don’t want to miss a trick and moreover don’t want to be criticised by the Court themselves. In a sense, Jackson and Mitchell have curtailed some of the spirit of cooperation engendered by the Woolf Reforms, albeit by focusing upon proportionality and delay. Time will tell if that is a good thing.