Civil Litigation Today……Jackson, Mitchell et al
A presentation for the Manchester Claims Association
19th June 2014
Key contact:
Michael Green
Partner (& Deputy District Judge)
michael.green@weightmans.com
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Stating the Obvious
▪ ‘First principles’. It sounds obvious, but always have in mind
the overriding objective. It is often overlooked but is the
guiding principle of the CPR and all case decisions refer to it at
some point.
▪ Whenever approaching a Jackson / Mitchell type issue, use this
as your guiding principle and visit it at the start and the end of
your approach.
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The Overriding Objective – new elements
▪ To deal with cases ‘justly and at proportionate cost’. It has
also now added:
▪ allotting to it an appropriate share of the court’s
resources, while taking into account the need to allot
resources to other cases; and
▪ enforcing compliance with rules, practice directions and
orders
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Top Tips (avoiding breach)
▪
Do not commence proceedings until you are in a proper position to do
so
▪
If you cannot control the above, make sure you throw time and proper
resource at a claim immediately. Do not take the ‘old’ style approach
of doing the bare minimum until you are under time pressures and
forced to deal substantively
▪
Always comply with the terms of Orders. No exceptions.
▪
Read all orders and notices you get very carefully. There can be
variations between Hearing Centres (as they are now called) in both
the small print and the standard form orders for directions – for
example, some build in automatic sanctions!
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Top Tips (avoiding breach) (cont)
▪
When filing your DQ, always file a draft Order for directions that you
have thought through carefully and requires minimal Judicial input –
that way you are more likely to have your draft order approved and
have your preferred timetable
▪
The same applies to any CMC. Parties all too often agree directions
they know may be difficult to comply with and set themselves up to
fail. If there is an issue, or longer is required, say why and push for the
extra time at the CMC. It will assist upon any future application for an
extension or (heaven forbid) relief from sanction
▪
Know your service rules. Does your opponent accept service by
fax/email? Do you know your clear day rules (revisit CPR 6)
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Top tips (avoiding breach) (cont)
▪
Experts – have them named and lined up before DQ/CMC. Also - are
they Mitchell compliant? The best are already cutting down their
workload. Find out their turnaround times (as well as costings) as you
may need to use someone else. Send your expert a copy of the Order.
This is a requirement for Practice Direction 35.8 anyway
▪
Use your diary and case management systems. Do not leave it until
the last day before the deadline to comply
▪
Wherever possible – co-operate with the other side and show you have
done so in open correspondence. Seek to agree any permitted
variations in good time (CPR 3.8) (“buffer orders”)
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Do’s and Don'ts
▪
Do:
▪
Always commence work on any task at the earliest opportunity (you
may have to show this later)
▪
Always exchange information openly with you opponent on timings
and any difficulties in the timetable
▪
If you are struggling and unlikely to meet a deadline, always issue your
application before the deadline expires
▪
The best applications show real efforts to comply in a timely fashion;
detail why compliance has not been feasible (or are honest about
failings); show attempts at co-operation with your opponent to avoid
troubling the court and then apply in good time for an extension
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Do’s and Don’ts (cont)
▪
Don’t:
▪
Ignore the above list and engage in conduct than runs contrary to the
overriding objective, at any point – it will catch up with you!
▪
Hide any failure to comply from the court or any other party
▪
Fail to apply for relief immediately in the hope you may sort it out with
the other side or apply to the trial judge (or that it may not be picked
up at all); or take technical points to gain advantage
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Relief from Sanction
▪
First of all, check there is actually a sanction (and not simply the
warning at the top of many orders that some have mistakenly viewed
as a sanction).
▪
Issue your application promptly or you potentially fall at the first
hurdle. If you apply and the breach is trivial and you apply promptly,
you have a reasonable chance of being successful.
▪
If opposing such an application, weigh your approach carefully. It may
often be safer to adopt a neutral stance than fully oppose – as relief
may only be granted by the court and not by consent. This must be
judged on a case by cases basis.
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Relief from Sanction (cont)
▪
When applying for relief, always do so as soon as practicable; on
notice (not on paper as many try); and seek the views of your
opponent. The decision rests with the court, but it will assist if your
opponent is not claiming prejudice.
▪
If applying, weigh up whether to offer costs as a sanction to your
opponent to try and defuse any battle on the application relating to
costs only prejudice. It is unlikely you will escape this sanction anyway,
even if being granted relief and agreeing this up front improves your
prospects and keeps costs to a minimum (refer to earlier advice on
overriding objective).
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