Courts now getting much tougher on procedural non-compliance

There are 2 contexts in which this post may be relevant to you :- you may be representing yourself ( a litigant in person) in court proceedings you may already be represented and your lawyer has warned you that you need to hurry up with providing instructions or documents in order to comply with a

Home » Disputes » Courts now getting much tougher on procedural non-compliance

There are 2 contexts in which this post may be relevant to you :-

  • you may be representing yourself ( a litigant in person) in court proceedings
  • you may already be represented and your lawyer has warned you that you need to hurry up with providing instructions or documents in order to comply with a court timetable

In a post earlier this week, we pointed out that many claimants and defendants do not appreciate the importance, both tactically and procedurally, of the Civil Procedure Rules and believe that the court will grant considerable leeway.

In fact, the trend is very much the opposite – court resources, like everything else, have been squeezed due to austerity and the combination of this and the removal of most legal aid eligibility means a lot of unrepresented litigants and less court resources.

Relaxing the rules could result in chaos and huge delays, hence the rationale for tightening the rules.

County Court or High Court deadlines generally arise in 2 main ways :-

  • the CPR set out a specific timetable, such as time within which an acknowledgment of service or defence must be lodged, are established by the court rules
  • a Judge may include a time limit in a directions order as part of his or her case management role. Commonly, where a party misses a deadline in a procedural order made by the court as part of general directions made as the case proceeds, will often result in what is known as an “Unless Order”. The Order made by the court will make clear that there will be a sanction, possibly being debarred from proceeding or defending, if the Order is not now complied with.

But what about the Overriding Objective and Relief from Sanctions ?

The overriding objective, promoting fairness, still applies to Civil Court process but has been modified to incorporate a stricter approach. In addition where a sanction does apply, such as missing a deadline, the party in default can still apply, but the approach of the court, even towards litigants in person, will definitely be stricter.

A recent case, Baker v Hallam Estates Ltd & Another illustrates the above points, the relevant parts of the CPR to be aware of, and the new approach of the courts.

The rules in question were :-

  • CPR Part 3.1(2) – allows a party to apply to the court for an extension of time for a particular step
  • CPR Part 3.8(1) – states that any sanction against a party who has failed to comply with a court rule will stand until and unless that party applies to court for and obtains relief from that sanction;
  • CPR Part 1.1(2)(g) – is a new part of the Overriding Objective for the CPR and establishes that the courts must now more strictly ensure compliance with court rules.

The Baler case centered out a dispute following on from the initial dispute – the issue in the case related to the losing party seeking to challenge the winning party’s claim for legal costs. The losing party failed to submit points of dispute within the relevant time limit established by the rules. In fact, that was the issue in dispute – they claimed that they did comply, but in fact were technically 1 day late by the time they applied for an extension of time. When making an application to extend time, they did not make alert the Judge to the full facts and they had applied without notice, so the other party was unaware they had applied.

The case outcome was that, having already lost the main case, the paying party had wasted more costs due to non-compliance and were unable to obtain relief from sanction (the sanction in this case being that they could now no longer dispute the costs claimed by the other party.

This case clearly shows that failures to comply with the court rules is being treated very strictly and that it will not be easy to succeed with an application for a relief from sanction. Further, with a without notice application full and frank disclosure remains critical, whether the application is for an injunction in commercial litigation or merely for a short extension of time in costs proceedings. It is also obvious from the case that any party who is either a claimant or defendant, unless legally represented, will need to spend time reading the very lengthy CPR – until the internet became a prime source for legal information, often free, the only way to access the rules was via a law library or by buying the rules at a heft cost.

The CPR can now be found online here.

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