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There is a tension at the heart of the civil justice system. On the one hand, the system exists to resolve disputes on their merits. On the other hand, time limits imposed by the Rules of Civil Procedure or court orders must be respected, otherwise they will cease to have any meaning. Judges are faced with the difficult task of balancing these competing interests in a manner that takes account of the facts of an individual case and the wider implications of their decisions on the system as a whole. Undue emphasis on one set of interests at the expense of another creates the risk of injustice or disproportionate outcomes.

The recent experience on these issues in England, set off last year by the Court of Appeal, are of real interest to litigators everywhere. Mitchell v. Sun Group Newspapers Ltd., [2013] EWCA Civ. 1537, involved the late filing of a costs budget, required by practice direction to be filed seven days before the hearing of a case management conference. The claimant’s budget was filed the day prior to the conference, necessitating an adjournment and the consequent delay and re-scheduling of other court business. The claimant’s solicitors explained the default by indicating that they were a small firm, with two lawyers on maternity leave and the pressures of other significant work. It was conceded that there was no prejudice to the defendant. Nevertheless, the Master refused the claimant relief from sanctions, the effect of which was that the costs that could be claimed were limited to court fees, instead of the in excess of 500,000 pounds set out in the budget.

The Court of Appeal upheld the decision, and in doing so gave primary emphasis to the need to enforce compliance with time limits:

The tougher, more robust approach to rule compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgment that the advancement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations. These obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure that their costs are kept within proportionate bounds. But more importantly they serve the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the court enables them to do so…

Although it seems harsh in the individual circumstances of Mr. Mitchell’s claim, if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback. In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with the rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past.

Less than a year later, faced with criticism from the Bar and a flood of “satellite litigation”, the Court of Appeal consolidated three appeals and called on the Law Society and Bar Council to intervene as friends of the Court. The concerns with the approach in Mitchell were that it resulted in a windfall to the opposing party, who was left to sue his solicitors; it added to the cost of litigation through increased premiums; and an unduly strict approach encouraged unco-operative behaviour by litigants.

The Court took these criticisms to heart. Its decision, Denton v. TH White Ltd., [2014] EWCA Civ. 906, represents a substantial step back towards a more balanced approach to the problem. The Court properly focussed on the importance of co-operation by counsel in processing civil claims:

We think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation.

Balance and proportionality are fundamental to our legal system. The experiment undertaken in England shows that when the system becomes unbalanced, injustice can result.