The landmark ruling in the Mitchell case set the benchmark for judicial attitude towards the new, tougher rules regarding applications for relief from sanctions under the Jackson-reformed civil procedure rules. The case was the first to hear a relief from sanctions application in the post-Jackson era and demonstrated how strictly the new CPR should be applied.
The Mitchell decision related to a failure to file a cost budget but it was thought the strict approach would apply to all relief from sanctions applications. In a subsequent case in the Court of Appeal, Durrant v Avon & Somerset Constabulary, Lord Justice Richards applied the Mitchell case and overturned a decision that allowed the police force more time to prepare witness statements. The police force attempted to justify their failure to provide witness statements citing the Christmas period, adverse weather and operational commitments of a number of officers as reasons for their failures. Lord Justice Richards said these reasons did not get close to providing a good reason for non-compliance.
However, a further case heard by the High Court last week demonstrated a softer approach to a relief from sanctions application. The application related to a number of claimants failing to serve individual particulars of claim by a certain date. Some claimants served by the agreed date and others did not due to some of them being out of the country at the time they were needed to sign the relevant documents. The judge in this case said the failures were failures of form rather than substance, and could properly be regarded as trivial. It is however hard to see that a failure to serve particulars of claim by an agreed or directed date could properly be regarded as trivial, and moreover the explanations for the failures are poor. It is perhaps the number of claimants involved in the claim that made the failures in this case appear trivial to the judge; in a case with 134 claimants pursuing the same claim, it is arguable the failures were trivial and the prejudice to the defendant very little as it was only 8 of 134 claimants that failed to comply with the date for service. The defendant is likely to know full well how the 8 missing particulars of claim would read, with the exception of few bits of factual information.
It will certainly be interesting to see if the latter case finds itself before the Court of Appeal because they have been the ones applying the strictest approach to relief from sanctions applications. A further ruling on this case would be beneficial to demonstrate a consistent judicial approach to the new CPR or at least to confirm that the failures were trivial and the justifications sufficient.
