April 2013 marked one of the biggest overhauls in the Civil Justice System when the Jackson reforms came into force. The main purpose of the reforms was to try and eliminate the previously lax approach to non-compliance. In the run up to the reforms, there was a degree of trepidation amongst the legal fraternity due to the potential sanctions that could be enforced for failure for non-compliance of rules, practice directions and Court orders. Lord Justice Jackson stated that ‘courts at all levels have become too tolerant of delays and non-compliance with orders. In doing so, they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system. The balance therefore needs to be redressed’.
Towards the end of 2013, the decision in Mitchell affirmed the view put forward by Lord Justice Jackson and confirmed the need for parties to comply with court orders, rules and directions, or risk severe penalties. The reforms have been in place for just over two years. The robust approach has led to parties attempting to capitalise on their opponents’ breaches, no matter how minor, were previously they may have effectively turned a blind eye.
The question therefore begs; has this approach been successful? Or have the waters been muddied by further cases which have given rise to uncertainty as to the sanctions that can be enforced? It can be seen that the implementation of Jackson and Mitchell has been well and truly botched. In particular, what strikes as the most disturbing theme following on from the cases of Mitchell and that the later case of Denton, is the inconsistency of the Judges, resulting in ever changing precedents.
Astoundingly, many of the judiciary, possibly most, have chosen different decisions of the divisions of the Court of appeal due to their unhappiness with the Mitchell decision. This is led to the success of an application in respect of relief of sanctions becoming more of a lottery than a followed precedent.
Where do we go from here? It is evident that there needs to be a standardised rule across the board which Judges adhere to. The robust approach from Jackson and Mitchell onwards has created a cloud of uncertainty with no strict rules to abide by. But why are we now over two years down the road since costs budgeting was with still no proper rules to deal with this?
The later case of Denton appears to place more emphasis on the need for parties to not act in an overly opportunistic manner, and in doing so stresses that reasonable requests for extensions of time for example should be granted by the other party.
Furthermore, post Denton, there does appear to be light at the end of the tunnel. In the most recent cases on the issue, it appears that the approach to breaches of Court orders, practice directions and rules as advocated in Denton, is in many cases being applied.
The draconian approach to applications in respect of relief from sanctions frequently applied before Denton looks to have been stemmed. The later decisions, such as that in Elder, confirm that reference to authorities pre Denton is not deemed to be necessary.
Although it can be argued that the application of Jackson and Mitchell has been well and truly botched, it would appear that further case law since has paved the way for a more concise approach. The sea of differing decisions provided by the judiciary appears to have been calmed, for the time being at least.
It seems that the emphasis on the need to litigate reasonably, not opportunistically, and the likely cost consequences to a party that has behaved in an opportunistic manner, is perhaps the greatest distinction from that of Mitchell. This appears to be some positive news for those parties looking to seek relief from court orders, rules and directions.