Most civil litigation practitioners will be more than aware that the court tends to take a dim view of parties who breach its rules, practice directions or orders, even in this ‘softer’ post-Denton climate.
Below are our top five tips to help you avoid a breach situation:
1. Be educated
Without a full understanding of your obligations you stand no chance of complying with them. Therefore, take time to properly familiarise yourself with all relevant and applicable procedural provisions (including those set out in the CPR, any relevant court guide and the court’s orders). Make sure you fully understand their exact meaning and effect and the courts’ current (and in many cases developing) attitude to them. Full familiarity will not only help you understand what is required of you and what the effect will be for any non-compliance but will enable you to assess, quickly, what action to take should you default, or fear you may default. Remember, the court is not sympathetic to practitioners who are unfamiliar with the rules and a client is likely to be even less sympathetic where a breach has resulted in draconian sanctions being applied to their case!
2. Be organised
Again, compliance is impossible without a clear idea of exactly what needs to be done and by whom for you to be able to meet each deadline. Therefore, carefully plan each of the steps that need to be taken for compliance, speak to all relevant people involved in each of those steps to ensure they will realistically be able to deliver what you need from them, explain to them the importance and implications of failing to meet the deadlines, plan for each relevant person’s absences, etc and then diarise not only the end-date but all the interim delivery dates to help you meet that end-date. Don’t forget to diarise regular status reviews of each deadline too. These status reviews should include a review not only of delivery dates but the costs already incurred and likely to be expended to help you keep within your budget
3. Be realistic
To avoid defaulting on your obligations, deadlines will need to be realistic and achievable. The court will only be able to set realistic and achievable deadlines if you help them understand the realities of meeting each deadline. Therefore, take time to carefully apprise them of some of the issues set out above as well as things such as local customs and practices affecting your deliverables. Do not be pressurised by other parties to agree to unachievable deadlines and, where you consider unachievable deadlines have been set, take action promptly. Failing to do this will only add to time and cost later on or, if the situation is really serious, your client being denied the ability to rely on key evidence and/or pursuing its claim at all
4. Be pro-active
By taking the steps above you should be aware early on if there is any likelihood you may default on any of your obligations. This is important as it will enable you to take protective steps promptly. There are many steps you can take to avoid being in breach – and the court will expect these to be taken. Equally, if you do find yourself in breach, the court will expect you to take prompt action so as to minimise the effect on your opponent(s), the court and/or other court users. Failure to act promptly could result in draconian sanctions being applied and/or your not succeeding in persuading the court to grant you relief from those sanctions
5. Be reasonable
The Court of Appeal, in Denton, seems to want to end the rafts of case management satellite litigation and to stop the adversarial climate that was reportedly developing following its decision in Mitchell. Although compliance is still key, the procedural rules should not to be seen as a trip-wire. Their application should not result in draconian, manifestly unjust or disproportionate decisions or reward the non-defaulting party with a windfall. As such, reasonable and co-operative approach between the parties is now to be ‘encouraged’ through the ‘heavy’ costs penalties that may be applied to parties who do not co-operate or behave reasonably when faced with applications to extend time for compliance and/or for relief from sanctions.
You may also be interested in Relief from sanctions – how the courts are applying Mitchell and Mitchell, Denton & Relief – what next?
LexisPSL customers can find further information in our Practice Note: Relief from sanctions-the courts’ approach