John Hodgkinson, Senior Costs Consultant, shows us that sensible decisions are being made when it comes to sanctions
The matter came before the Court on the first Case Management hearing, thus any budget should have been served seven clear days beforehand.
The fourth defendant was one day late in filing her costs budget, so that instead of having been served seven clear days before the CMC, it was served six clear days before this hearing.
Counsel for the Claimant took a ‘Mitchell’ stance notice of which was contained within a note prepared for the hearing but only served slightly after 4.00PM on the day prior to the hearing. This was just after the conducting fee earner had left for the day.
Counsel for the fourth Defendant invited the Court to consider an oral application for relief.
The Court, when giving their decision, also referred to part of a paper delivered by Lord Justice Jackson at a conference held on 21st March 2014 by the Civil Justice Council on the impact of the Jackson reforms.
In paragraph 3.9 of that paper, having referred to the decision of the Court of Appeal in Mitchell, Jackson LJ wrote:
“Nevertheless parties should not be allowed to exploit trivial or insignificant breaches by their opponents, as Leggatt J stated in Summit Navigation Ltd & others v Generali Romania Asigurare Reasigurare SA (2014) EWHC 398 (Comm).”
Whilst acknowledging that a delay of one day may not in another matter be trivial, it was accepted to be in the context of this case and the Court therefore ‘ordered otherwise’ under CPR 3.14.
The Judge when deciding the breach was trivial, cited points including the Claimant’s acceptance that they had not been prejudiced; that each party could deal with costs management on the hearing, and the Court’s timetable had not been disrupted. Such consideration as this would be more relevant if no costs management order was made at this first hearing but directions given resulted in a revised budget being required later. The Judge expressed the view that ‘in such circumstances an initial delay of one day or more in filing a costs budget can become almost entirely irrelevant or immaterial on the subsequent occasion when the court in fact makes a costs management order.’
Comment – the quotes taken from Lord Justice Jackson’s recent paper are an ironic but useful counterpoint to the quotes taken from the initial Jackson reform lectures referred to in Mitchell. Another balanced view of the importance of rule compliance and breach.
Of note is that the transcript is reproduced at public expense, perhaps to inform and educate the profession and make clear the importance of a balanced view of ‘trivial’ breaches.