Testing the courts attitude towards compliance with rules, practice directions and court orders.
On 21 September 2013, The Sun newspaper reported that the Claimant, then the Chief Whip of the Conservative Party, had launched into a tirade against police officers at the entrance to Downing Street, branding them “plebs”. The incident has garnered huge media coverage and has since become known as ‘plebgate’.
On 7 March 2013, the Claimant issued proceedings alleging defamation. A defence was filed on 17 May 2013, pleading justification and that the story was one of strong public interest which had been reported in a responsible way (the Reynolds defence).
On 5 June 2013, the Court issued an order (which was delivered to the Claimant’s solicitors on 6 June 2013 that there would be a case management and costs budget hearing on Monday 10 June 2013), which was then re-listed for 18 June 2013. The Defendant used an external costs lawyer to prepare the costs budget which was filed on 11 June 2013. The Claimant’s solicitors prepared their costs budget in-house.
On 17 June 2013 at 12:14 p.m., Master McCloud sent an e-mail to the parties’ solicitors stating that there was no budget from the Claimant and asking if budgets had been agreed between them. The Defendant’s solicitor replied stating that they had attempted numerous times to contact the Claimant’s solicitors with regard to budgets, but to no avail. At 12:44 p.m., the Claimant’s solicitors e-mailed Master McCloud, stating:
“Apologies, we have yet to be able to finalise the Claimant’s Precedent H budget as we have been delayed in receiving Counsel’s figures despite chasing for these daily since the middle of last week. We aim to file the documents in the next two hours and exchange with the Defendant.”
The Claimant’s solicitors filed their Precedent H during the afternoon of 17 June 2013. At the hearing on 18 June 2013, the Defendant’s solicitors said that there had been insufficient time to consider the Claimant’s budget. Master McCloud was informed by counsel for the Claimant that the reason why the budget had not been filed until the previous day was “to do with pressure of litigation elsewhere in the firm on another case.” This was clearly contradictory to the previous statement from the Claimant’s solicitor.
Master McCloud stated that there were “really no adequate excuses for this breach.” She went on to say that the process of costing the litigation has “simply died” in this case. She therefore made and order on the following terms:
“1. The Claimant shall be treated as having filed a budget comprising only the applicable court fees;
2. The Claimant shall be entitled to apply for relief from sanctions, the hearing on the application to be heard at 2 p.m. on 25 July 2013, alongside the adjourned Case Management and Costs Budget Hearing….”
Application for Relief From Sanctions
On 25 June 2013, Master McCloud heard the Claimant’s application for relief from sanctions. She said that she was entitled to look at CPR 3.14 as a guide to what may be regarded as a “proportionate sanction in a closely analogous situation of a failure to file a budget on time.”
She further noted that there had been an “absolute failure” to engage in discussion of budget assumptions “when asked” and there was no attempt to apply for extra time or to ask the court informally for relief before “running into time difficulties.” It was submitted by the Claimant that the rules post-Jackson were about “low tolerance” of defaults as opposed to “no tolerance”. Master McCloud dismissed the Claimant’s application, concluding that “…the new overriding objective and the identical wording in rule 3.9 highlight the emphasis to be placed, now, on rule compliance and one has to give effect to that.”
Court of Appeal
The Claimant appealed to the Court of Appeal, in which Lord Justice Richard and Lord Justice Elias considered both decisions of Master McCloud. The Court of Appeal accepted that the approach of Master McCloud was acceptable and she did not misdirect herself in any way with the rules, or reach a conclusion that was not open to be reached. It was acknowledged that the decision may be harsh, but any “attempt to achieve a change in culture would receive a major setback.” The Claimant’s appeal was therefore dismissed and the Claimant’s costs of the action were limited to court fees only.
The impact of the Jackson reforms with regards to costs and especially costs budgeting seems to have hit home with the judiciary. This robust approach can be seen as a ‘wake-up call’ to litigators who fail to adhere to these costs rules. The impact of having potentially recoverable costs limited to court fees alone would, in my opinion, be sufficient for any litigator to take costs budgets and the new costs rules post-Jackson very seriously indeed.
It is safe to say that the approach taken in Mitchell can be applied to all court rules and directions generally. If solicitors wish to test the resolve of the judiciary by skirting the boundaries of compliance with court directions, then serious sanctions may be dished out. Mitchell may only be the beginning of such severity. It needs to be borne in mind that the rules are there for a very specific reason. Ultimately, they assist the parties and the court to provide effective and efficient case management. If there was a shift towards compliance, this will lead to less interlocutory applications on extending deadlines and relief from sanctions, leading to a smoother Court process for all involved.