This latest judgment from the Queen’s Bench Division reinforces the principles of Andrew Mitchell -v- News Group Newspapers Ltd [2013] EWCA Civ 1537 (“Mitchell”) and the robust stance that Judges are now taking in relation to failure to comply with Court deadlines.

Background

This case arose from a professional negligence claim against the surveyors, e.surv limited (“e.surv”) which settled costs exclusive in November 2011. The Claimant, Webb Resolutions Limited (“Webb”) subsequently pursued the costs claim, which came before Master O’Hare for Detailed Assessment in April 2013.

At Detailed Assessment, Just Costs Solicitors, representing e.surv, raised an objection that Webb had breached the rules. However, using his discretion, Master O’Hare granted relief from sanctions under CPR 3.9, noting that the breach was of “the merest technicality”. E.surv sought permission to appeal Master O’Hare’s decision but permission was refused by Mr Justice Haddon-Cave on 29 July 2013. Following the CPR rules, e.surv had 7 days to appeal this decision and request an oral hearing. Subsequently, e.surv made an Application out of time for an oral hearing on 18 November 2013, some three and a half months after permission had been refused by Haddon-Cave J.

This Application was heard on 27 November 2013, the same day that the Court of Appeal handed down the significant ruling in Mitchell. At this hearing, Just Costs Solicitors, again acting for e.surv, persuaded the Judge, Mr Justice Blair, to grant the extension of time and to give permission to Appeal the judgment of Master O’Hare. At this hearing, Just Costs Solicitors cited the Mitchell ruling as a reason as to why Webb should not have been given relief from sanctions, but neglected to point out that they themselves fell foul of the principles of Mitchell. Webb, who were represented by Rosling King LLP, made an Application to set aside the order of Blair J.

The Decision

Webb’s Application was heard before Mr Justice Turner on 17 January 2014.

In his judgment, Turner J, heavily criticised the conduct of e.surv’s representatives, Just Costs Solicitors, stating that the “representations made to [Blair J] were phrased in such a way as to camouflage the real period of delay” going on to say that the comments made by Just Costs’ advocate were “simply wrong” and that the “unintended impact of [Just Costs’ advocate’s] representations was such as to mislead the Court in a material respect”. The Court held that it was “entirely satisfied that, if Blair J had had his attention specifically drawn to certain aspects of the application, he would not have extended time and the appeal would have failed in limine.” Turner J highlighted the principles in Mitchell and the “tougher and less forgiving approach” that was intended to stem from this Court of Appeal ruling.

When reviewing the extent of the default by e.surv, the Court held that the default was “not trivial” and that “[e.surv] delayed for a period of about three times in excess of that permitted by the rules” and that there was “no good reason for the delay”. In fact, Turner J stated that the reasons given by Just Costs’ advocate were “thoroughly bad reasons,” stating that “in the light of the stringent approach taken by the Court of Appeal in Mitchell as to what may or may not constitute a good reason it is plain, without the need for further elaboration, that the reasons relied upon by [e.surv] whether taken individually or together came nowhere near to satisfying the test”. The Court emphasised that the default in this case was “so blatant and avoidable that [it] would have exercised [its] discretion in the same way even applying the less robust approach which would have been appropriate under the old regime [pre-Mitchell].”

Turner J concluded that if Blair J had been directed specifically to the period of delay caused by e.surv and had he read the case of Mitchell, that he was “in no doubt that, regardless of the prospective merits of an appeal, he would have refused an extension of time.”

Turner J upheld Webb’s Application to set aside the order of Blair J and awarded Webb its full costs, as set out in its Statement of Costs, of £24,344.55.

Commentary

This judgment once again highlights that litigation has evolved and that the Courts are adopting a more robust and stricter approach following the Jackson reforms. It also illustrates the detrimental effect that can stem from not complying with Court rules, resulting in heavy costs sanctions.

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