Case round up by Gary Knight
At the time of writing it has been 4 months since J-Day (Jackson Day) and thus far the seas have not boiled and the 4 horsemen of the apocalypse have not been spotted riding through the new costs landscape but it is still early days.
The Courts have, however, wasted little time in sending out the message that non compliance with Court orders, rules and directions will, in the main, not be tolerated with relief from sanction applications not being favourably received.
Fred Perry (Holdings) Ltd v Brands Trading Plaza Ltd [2012] EWCA Civ 224
The Court of Appeal refused to overturn a judge’s decision not to grant relief from sanctions under CPR r.3.9, indicating that it was vital that the Court of Appeal should support first instance judges who made robust but fair case management decisions.
We have seen recently, in the matter of Henry v News Group Newspapers, the Court of Appeal feeling the need to add comment regarding the future approach to be adopted following the new rules:
Those rules, which will become effective from 1st April 2013, differ in some important respects from the practice direction with which this appeal is concerned. In particular, they impose greater responsibility on the court for the management of the costs of proceedings and greater responsibility on the parties for keeping budgets under review as the proceedings progress. Read as a whole they lay greater emphasis on the importance of the approved or agreed budget as providing a prima facie limit on the amount of recoverable costs. In those circumstances, although the court will still have the power to depart from the approved or agreed budget if it is satisfied that there is good reason to do so, and may for that purpose take into consideration all the circumstances of the case, I should expect it to place particular emphasis on the function of the budget as imposing a limit on recoverable costs. The primary function of the budget is to ensure that the costs incurred are not only reasonable but proportionate to what is at stake in the proceedings. If, as is the intention of the rule, budgets are approved by the court and revised at regular intervals, the receiving party is unlikely to persuade the court that costs incurred in excess of the budget are reasonable and proportionate to what is at stake.
In the matter of Murray & Anor v Neil Dowlman Architecture EWHC 872, Mr Justice Coulson (TCC) commented during his summing up:
In addition, I consider that this rigorous approach is mirrored by many of the other changes to the CPR coming into force on 1 April 2013, including (for example) the amendments to r.3.9(1). These amendments now place much more emphasis on the importance of complying with the orders of the court, rather than the previous lengthy ‘shopping list’ of matters which the court was obliged to work through. Fred Perry (Holdings) Ltd v Brands Trading Plaza Ltd is clear authority for the proposition that these changes mean that the courts will generally be less ready than before to grant relief from sanctions for procedural defaults.
However in the matter of Ian Alan Wyche v Careforce Group PLC (25/07/13) Relief from sanction was granted by Walker J in relation to admitted errors in the provision of electronic disclosure under an unless order that had the consequences of debarring that party from relying on a defence in event of non-compliance. Whilst the opponent had argued that whether mistakes made were inadvertent or deliberate “was irrelevant”, Walker J, whilst acknowledging that the mere fact that the mistake was inadvertent could not be “the trump card” it was nonetheless a relevant consideration, acknowledging the fact that on discovering the mistake the party in default’s response was “immediate and prompt”.
“Although the combination of delay and noncompliance was unacceptable, that did not mean that the court would not make any allowance for human error”.
Much relief no doubt on the Defendant’s side of the table!
Elsewhere the new Road Traffic Portals have been published effective 31 July 2013. For a detailed analysis of the changes to the portals no better example can be found than that produced by Kerry Underwood at:
http://kerryunderwood.wordpress.com/2013/07/31/new-portals-and-fixed-recoverable-costs-now-in/
