In the heady post-Mitchell world in which we operate, we are glad to see the back of the blizzard of satellite litigation that ensued in relation to relief from sanctions and welcome the recent Court of Appeal guidance on this matter, writes partner Georgina Squire. What remains to be seen, however, is whether the recent changes made to the Courts will improve the service offered, or whether they will actually complicate the litigation process even further.

The controversy started in April 2013 when Lord Jackson’s proposed reforms were implemented and part of the Civil Procedure Rules (“CPR”) were amended. The amended CPR 3.9(1) rule left the Court with more discretion to consider applications made for relief from sanctions.

The number of hearings increased immediately after the Mitchell judgment, which was coincidentally around the same time that the impact from cut backs to Court resources, due to the government’s budget constraints, was being felt by civil litigators at large. A number of Courts around the country have been closed, Court staff numbers have been reduced and so workloads have increased, meaning that the Courts are taking much longer to process documents and hearings. As a result, access to civil justice has been severely hampered. At around the same time, the County Courts, of which there were 173, merged to form a single ‘County Court’, with various hearing centres created across England and Wales.

It was clearly recognised amongst the judiciary, as well as the legal profession as a whole, that Mitchell had inadvertently created significant additional pressure on an already creaking Civil Court system. The Civil Procedure Rule Committee went some way to alleviate the strain by bringing in the ‘buffer rule’ on 5 June 2014 which allows parties to extend a deadline by up to 28 days by way of consent, provided the extension does not affect a hearing date, and unless the Court orders otherwise.

At around the same time, the Court of Appeal also recognised that Mitchell had created too much confusion and, although it did not wish to criticise the decision, provided some clarity to its guidance about CPR 3.9. To do so, the Court of Appeal heard three appeals together in July 2014, referred to collectively as Decadent Vapours. In allowing each of the appeals, the Court of Appeal explained that an application for relief from sanctions should be looked at in three stages.

Since the buffer rule has been introduced and the Decadent Vapours judgment handed down, all has quietened down in the post-Mitchell world of satellite litigation around deadlines and compliance with Court ordered timetables. Decisions have been made following Decadent Vapours which confirm that the Courts are unlikely to look favourably on opportunistic applications and are positively discouraging such satellite litigation.

Following the guidance in Decadent Vapours, litigating parties should be observant of all deadlines and try at all times to comply with them. It should be remembered that the buffer rule is a useful device and should be used, if possible, rather than make an application for relief from sanctions. Any such application should be made prior to a deadline, wherever possible.

It is hoped that, following the recent changes, the Courts will have greater resources to deal with the substantive issues between the parties that remain in dispute, rather than spend large amounts of their time on Mitchell type applications made for a tactical advantage. It should still be remembered that the single County Court is going through a transitional period, however, and the Civil Court budget is minimal, or so we are told. The question as to whether access to justice is still being prevented is one that remains unanswered. It is likely that we will still experience long delays, at least for the foreseeable future. Only time will tell whether the change in the Courts system will enhance the overall service afforded to all Court users.
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