BLACKS SOLICITORS: A Brief History of Lateness – missed deadlines and the courts
Court cases have a reputation for dragging on, with each step taking weeks or months. The courts themselves are only too aware of this and streamlining procedure was one aim of reforms introduced in 2013 which revised the courts’ approach to what lawyers refer to as “relief from sanctions”.
Sanctions in this context refer to the consequences of a party failing to take a particular step by a given deadline. Typical sanctions are that the party cannot rely on evidence which is late or that a claim or defence is struck out completely. A party can apply for relief from sanctions to avoid a penalty and, prior to the reforms, this would generally be granted where the failure did not seriously prejudice the other party.
However, post-reforms, granting relief from sanctions is considered much more in light of the need to enforce compliance with rules. This led to a much harsher regime.
This was reflected in 2013’s Mitchell v News Group Newspapers case, a defamation claim where the claimant failed to file a costs budget until the day before the hearing due to consider it. The judge ruled that the budget had arrived too late and deprived the claimant of the chance to recover his, very substantial, costs if he won. Relief from sanctions was applied for but refused. Mitchell looked to have brought in a zero-tolerance era.
The next year saw a raft of challenges to decisions that took the same approach as Mitchell, most prominently Denton v TH White where severe penalties had been imposed for lateness and other breaches. These challenges saw the courts deciding that the Mitchell principles had been applied over-strictly. They also noted that Mitchell had led to an overly antagonistic atmosphere between parties, which had an incentive to make the most of even minor errors by the other side. Since the Denton decisions, the courts have tried to walk a line between being too strict and too lenient, an uncertain environment in which to conduct litigation.
The best approach, of course, is to hit the deadline in the first place, meaning that parties should be thinking about costs, experts, witnesses and other key steps well in advance, rather than rushing to hit a deadline at the eleventh hour. This was underlined in the recent decision in Lakhani v Mahmud. The defendant’s budget was served one day late and the courts refused to accept it, severely limiting the defendant’s ability to recover costs. The defendant sought relief, as the parties had agreed costs, the delay was slight and prejudice to the other side minimal, but relief was refused, in part because the application itself was made late. Even a small default, exacerbated by further lateness, proved to have a catastrophic impact on the defaulting party’s prospects. The lessons to be learned are clear.
Blacks Solicitors offers expertise on all forms of disputes and can assist in relation to any litigation in the civil courts. Please contact Luke Patel on 0113 227 9316 or email him at “LPatel@LawBlacks.com”.