Thursday, 23 January 2014

A sanction too far? Striking a balance between access to justice and the new civil procedure landscape

How is justice faring post-Jackson?

We're now well into the new regime that was ushered in last April, when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 became law. LASPO was inspired by Lord Justice Jackson's review of civil litigation costs and made for the biggest change to the domestic civil justice system since the Woolf reforms of the 1990s.

LASPO tried to strike a balance between streamlining civil procedure so that exorbitant and disproportionate costs weren't incurred by legal advisors, and ensuring that clients had proper access to justice. This was always going to be a tough challenge. And, in the wake of the much-publicised costs ruling in Andrew Mitchell's libel action against The Sun, it is debateable whether the challenge has been best met.

A black letter view

To revisit the Mitchell matter, the former government chief whip sued The Sun for libel over its coverage of the notorious 'Plebgate' incident. Regrettably his solicitors were late in filing a cost budget ahead of a case management hearing. The court then took a black letter view of the civil procedure rules, holding that Mitchell was to be treated, pursuant to CPR r.3.14, as having filed a costs budget comprising only the applicable court fees. In other words: he was prohibited from exceeding a set costs budget of £2,000.

There then followed appeals, in which Mitchell's solicitors - who were acting on a no win, no fee basis - sought relief from the court's sanction for non-compliance. It transpired that they had filed a proposed £506,425 costs application on 17 June 2013. This was less than 24 hours before the date of the case management hearing; court rules state that costs budgets must be lodged seven days in advance. The defendant, News UK (parent company of The Sun), had filed its planned £589,558 budget figure for defending the case on 11 June - within the seven-day deadline.

The attempt to obtain relief from the court's sanction was unsuccessful. The Court of Appeal made its position clear, stating:

Andrew Mitchell
"The defaults by the claimant's solicitors were not minor or trivial and there was no good excuse for them. They resulted in an abortive costs budgeting hearing and an adjournment which had serious consequences for other litigants. It seems harsh in the individual case of Mr Mitchell’s claim, [but] 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 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."

Robust - but is it fair?

The outcome of the Mitchell ruling is robust - and its effect is being felt across the civil procedure landscape. A great many cases of procedural non-compliance have resulted in rulings that take a dim, not to say intolerant, view of human error. This trend has become so pronounced that a recent headline on the Litigation Futures website sums up the prevailing culture: 'Costs judge grants relief over failure to serve N251 - yes, really!'

It is undoubtedly right that legal representatives smarten up their acts and do their absolute best to comply with procedural timetables. But sometimes extraneous factors intrude; sometimes there are good reasons for a delay; sometimes plain old human error can’t help but arrive on the scene.

This, to me, is something to be mindful of. The law is an absolute construct, something above and beyond us, before which we are all equal - rightly so. But it deals with people, with human life in all its teeming ambiguity and with all its potential for mistakes; with things that are often coloured grey rather than black and white.

I worry that too rigorous an application of court sanctions may in some situations deny access to justice to those who need it - clients, who shouldn't be punished for the mistakes of their legal advisors.

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