#14954 - Function Of Courts Case Management Summary Adjudication - Principles of Civil Procedure

Case Management & Relief from Sanctions

CPR 3.9

Role of Courts – tension between objects

• Court provides law enforcement service underpinning rule of law

• To discharge that function and enforce rights – court must correctly apply law to facts – establishing the truth

• Balancing act – no entitlement to best possible – optimisation

  • Law enforcement (truth value) – need for accuracy

  • Time – need for expeditious enforcement

  • Resources – public policy

• Require ‘reasonable level’ – sufficient to inspire confidence in the system

Rationale

• Importance of case management

  • Fair rationing of resources

  • Otherwise present parties in particular dispute would consume inordinate resources

Court time as a (finite) resource

• Allocate evenly between cases

• Allocate in accordance with cost of cases? – emotional/personal value

  • Dworkin – whether investment in procedure should be proportionate to economic value

  • Harm caused as consequence of decision – necessary to expend more resources to get it right

  • When error occurs –

    • Economic cost of error

    • Moral harm – variable / connected to economic cost?

      • Particularly significant in criminal context – reason for higher standard of proof

• In accordance with complexity of cases

  • Viability of arguments? Prospects of success?

• “Three-dimensional justice”

  • Substantive fairness <> expeditiousness <> limited resources

  • Proportionate relationship between means (litigation expense) and ends (determination on merits)

  • And within reasonable time — justice delayed is justice denied

• Dworkin —

  • No litigant has a right to the most accurate procedures for determining disputes

    • Agree

  • Litigants have right to procedures that assess the risk & extent of moral harm if just outcome not reached, and equal distribution of resources on that basis

    • BUT this says nothing about the total amount of resources that should be devoted to justice within the State

    • IE Court resourcing not in a vacuum — eg possible that no of judges has to be increased

Court as a public service

• Not merely a private dispute settlement system

• Public significance & precedential value

• Analogy with medical services – or any other public service

  • Or telecom bandwidth, or water

  • All require management of resource distribution to end user

• Objective of management – CPR 1.1 “overriding objective of enabling the court to deal with cases justly”

Forces at work in allocation of resources

• Two levels

  • Formal level

  • Economic level

    • Economic activity follows the most rewarding path (not very altruistic…)

• Rules required to avoid arbitrary justice – procedural rules as well as substantive rules

Need to ensure compliance

• Defendant has motivation to delay

  • Doesn’t comply with rules, orders

    • Can have costs ramifications, in theory

  • Court has power to make ‘peremptory’ order – strike out of defence

  • Defendant resists strike-out application

  • Appeals

• Lawyers have economic incentive to prolong litigation

  • AZ suggests judges do as well…

• Consequences is other form of delay in form of satellite litigation

  • Not about formalities, but about procedure

• Effect of cost – limits access to courts

  • Cost of litigation unpredictable – depends on length

  • Costs not available until final determination

  • Legal aid available to impecunious litigants – no longer available in civil cases

Historical perspective

• Pre-Judicature Acts 1875

  • Claimants had to bring claim within particular form

    • No difference between substantive right & procedure

    • Focus on technicalities – protracted & expensive

  • Different courts for different actions – Chancery & Common law

  • Defendant would first try to find fault in the form – non-suited / strike out

• Judicature Acts

  • Forms of action abolished

  • All claims brought by writ

  • Focus on merits

  • Modern system of pleadings established

  • 1883 RSC O 7 r 1 – non-compliance with rules does not render proceedings void unless court so directs – can be set aside as irregular/amended/dealt with as judge thinks fit

    • provides wider discretion

    • loosens procedural strictures

• Sharp divide between pre-trial & trial

  • Pretrial – pleadings, disclosure

  • Trial – continuous, fact-finding & submissions

Position under old RSC

• Broad discretion to strike out or waive irregularity: Ord 2 r 1; Metroinvest Anstalt v Commercial Union Insurance

• Discretion only used very sparingly — Birkett v James [1978] AC 297, (delay by plaintiff – defendant applies to strike out claim for inordinate and inexcusable delay

  • Diplock LJ: Discretion to strike out should be exercised only where either:

    • (1) default intentional – conduct amounting to abuse of process or disobedience of peremptory order – challenge to court’s authority; or

    • (2) (a) inordinate and inexcusable delay and (b) delay will give rise to substantial risk that not possible to have a fair trial of the issues – eg deterioration of evidence

  • Relieves burdens of rules – or undermines the rules – regarding time limits for disclosure — essentially encouraged delays

  • Created uncertainty — further litigation about interpretation of standard

• Heavy emphasis on justice on the merits

  • But failure to police procedure permitted tactical litigation to dominant & obstruct a determination on the merits

• Court’s role was reactive rather than proactive

Reforms to ensure compliance with procedural orders

• Wolfe Report 1998 – current civil procedure rules enacted

  • Creates infrastructure for better management of system

  • Rise of case management

    • Achieve savings of resources & time

  • Difficulties now with distribution of resources to case management

  • Woolf hoped that CPR 3.9 would lead to change in culture

• BUT – Statistics

  • Following reform of 1875 – cost of litigation rose

  • Following Wolfe reforms – cost of litigation rose again

  • Causes

    • Formal – Mismanagement by judges

    • Economic – Financial incentives for protracting litigation remain

• Excessive discretionary factors in CPR 3.9 (relief from sanctions for non-compliance)

  • Leads to uncertainty & complication, which spawns further litigation, appeals etc

  • Objective to decrease litigation and make economical – but in reality creates further disputes about compliance

• Jackson report 2010 – amend CPR 3.9 to remove list of discretionary factors — now to look at all circs incl (a) efficiency & (b) need to enforce compliance

  • (a) simply restates overall objectives; (b) is a truism

  • Jackson noted that courts had become too tolerant & lost sight of culture of delay & noncompliance

Relief from Sanctions

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

• Applies to sanctions—

  • Only where sanction imposed for non-compliance with rule, PD, or court order

  • IE not where no sanction imposed

    • Failure to comply with time limit in rules — eg Notice of intention to rely on hearsay evidence under CPR 33.2(4)(a)

    • Has nonetheless been applied in such cases — eg to extend time to exchange witness statements: Bansal v Cheema

    • But Dyson LJ refused to apply it to extension of time to appeal under CPR 3.1 before expiry of time limit in Robert v Momentum

  • Better to apply to all cases — should be no distinction between rules and court-imposed sanctions

  • <> CPR 3.10 applies to failure to comply with rule or PD — court can make order to remedy & doesn’t invalidate

• Sanction has effect unless a party obtains relief (CPR 3.8(1))

• The court is to consider (1)(a) efficiency and proportionate cost (b) the need to enforce compliance (CPR 3.9)

  • Says little that isn’t already in the rules —

    • (a) merely restates overriding objective in CPR 1.1

    • (b) merely says that the rules should be enforced

  • Proportionality — it is legitimate to debar a party without regard to the merits if they forfeit their opportunity for a trial by noncompliance with orders

  • Also requires that orders are fair & give reasonable period of time

• Dyson MR speaking extrajudicially — justice does not mean only a decision on the merits — emphasis on overriding objective is to eliminate lax application

  • But no clear standard, no exhaustive list

  • Many judges still have regard to old factors

Remaining problems with CPR 3.9

• Judges too willing to use discretion to grant relief, striking out only in extreme circs

• Earlier draft by Jackson — “primary need to enforce compliance with rules, PD & orders save where there as been (a) good reason for the default or (b) in exceptional circs”

  • Clearer & gives a standard

  • Leaves residual discretion but gives clear guidance

Application of CPR 3.9

Mitchell v New Group Newspapers (2013, CA)

• Failure to file costs budget — Master imposed sanction of court fees only — CA dismissed appeal

• No relief unless —

  • (i) breach is trivial or

    • breach of form rather than substance

    • narrowly missed time limit

    • BUT — as to degree, or intention, or effect, or both?

  • (ii) there is a good reason for it

    • solicitor suffered from a debilitating illness / accident

    • Later developments showing period for compliance originally imposed was unreasonable, seemed reasonable at the time and could not realistically have been appealed

    • <> mere overlooking a deadline

• Factors of (a) efficiency & proportionality and (b) need to enforce rules were of “paramount...