The High Court has recently delivered judgment in the case of Wain v Gloucestershire County Council which further considered the rules regarding filing and serving cost budgets. The decision demonstrates further inconsistencies in the judicial approach and creates greater uncertainty as to what amounts to a ‘trivial breach’ of the rules.
The case of Mitchell, heard by the Court of Appeal last year, set the precedent for relief from sanctions applications and since then the fall out has been less than consistent, with some courts choosing to pay lip service to the decision but grant relief using judicial discretion and others applying the rules as strictly as they are written. Particularly in the county courts, it seemingly depended in which court the application for relief was heard as to whether or not the applicant was likely to be successful.
The Defendant filed their cost budget one day later than they should have done under CPR 3.13. This was deemed trivial by His Honour Judge Grant because all parties were able to deal with costs management despite the delay and, by their own admission, the Claimant’s had suffered no prejudice as a result of the delay.
This shows a retreat from the strict approach the courts have previously taken to non-compliance but it still leaves a big question – when is failure to file a cost budget not trivial? What if the cost budget was 2 days, 3 days or 4 days late? When there is no actual prejudice to the compliant party? The answer is that nobody knows due to inconsistent judicial attitude when handling these applications. The outcome will depend on numerous factors such as the intricate facts of each case, the actual delay, prejudice and even the judge on the day.
Some people might criticise the Claimant’s solicitors making this application based on a cost budget that was a day late but given the uncertainty surrounding this issue it could have worked to their client’s advantage, both procedurally and in respect of costs, particularly if the claimant was ultimately unsuccessful. Let’s face it, a solicitors duty is to their client, not to the other side. If there is a procedural advantage to be gained it is hard to argue that the issue should not be raised before the court, no matter how trivial the non-compliance may be, especially due to the current state of judicial inconsistency in deciding relief from sanctions applications.
