Dominic Woodhouse, Costs Drafting Manager
Are the courts finally coming to a more balanced view of rule compliance, tempering the mandate of absolute procedural regularity to something more in keeping with the real working life of solicitors and the Courts?
Recent cases would seem to suggest so, be it Wain-v-Gloucestershire County Council & Others  EWHC 1274 (TCC)as we commented on last week, or another recent case, this time from David LJ in the court of Appeal in Chartwell Estate Agents Ltd – v – (1) Fergies Properties SA (2) Hyam Lehrer  EWCA Civ 506.
The Claimant failed to serve witness evidence in accordance with an Order of the Court, arguing in the run up to the date for exchange, an inability to properly prepare statements in the absence of outstanding disputed disclosure from the Defendant. The date for exchange came and went, the Defendant also failing to serve evidence in accordance with the order. The Claimant therefore made an application seeking, amongst other matters, an extension of time for service of evidence and relief from sanction for the parties for failing to comply with the previous order. Whilst the application was opposed, it was nevertheless granted at first instance, on the basis that exclusion of the evidence would be too severe a consequence when set against the whole background of the matter and that exclusion would effectively end the claim.
Whilst the Court of Appeal considered that in the post-Mitchell era a much more rigorous approach was required than that indicated in a note in the White Book (to the effect that it would only be in very rare circumstances that it would be just to exclude evidence from trial simply for being late), it nevertheless concluded that the judge, at first instance, had been entitled to grant relief from sanction in light of the whole history and background of the matter.
In upholding the decision, the Court of Appeal was at pains to observe that Mitchell had not said that compliance with rules and court orders would always trump other factors, and that the Court of Appeal’s reluctance to interfere with case management decisions applied not only to those decisions where relief was refused, but also to robust but fair decisions granting relief.
Whilst compliance with rules and court orders will undoubtedly continue to be seen as an end in itself and attract a great deal of emphasis in such situations, this case brings a timely reminder that Courts should not lose sight of what is just and fair in all the circumstances.
Long may this current trend continue.