Things have changed over the last few months and sadly you not complying with a Court Order could be fatal to your claim.
What does complying with a Court Order mean. Simply if the Court has provided you with directions of how to conduct your case i.e. :-
- “Both Parties to exchange List of Documents by the 5th May 2014 (or whatever date set down by the Court)
- Both Parties to exchange witness statements by the 6th June 2014 (or whatever date set down by the Court) etc.”
AND YOU DO NOT DO WHAT THE COURT HAS ASKED YOU TO DO, BY THE TIME THE COURT HAS ORDERED YOU TO DO IT, YOU MAY LOSE YOUR OPPORTUNITY TO DO IT ALL.
Think about it, its quite simple really, if you don’t bother to submit your Statement by the date ordered by the Court, and you then apply to the Court to ask for permission to submit your Statement late, and, the Court refuses, that is your case over and done with no matter how good your claim.
So what happened well CPR 3.9 happened on the 1st April 2013 and the Courts were directed to consider “all the circumstances of the case, so as to enable the Courts to deal justly with an application for relief of sanction” (a relief of sanction is you making an application to the Court if you have missed complying with a direction, rule or order of the Court) however the Judges would now only consider two questions when deciding whether they should grant your application for relief of sanction) (give you extra time to comply with their original Order). The questions the Judges HAVE TO consider are:-
- Can litigation be conducted efficiently and at a proportionate cost;
- The necessity of enforcing compliance with rules, practice directions and orders.
Judge Lewison giving his Judgment in the Court of Appeal in the case of Perry v. Brands Plaza Trading 2012 EWCA Cov 224 said the following:-
“Courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non compliance is inflicting on the civil justice system. The balance therefore needs to be redressed”
Judge Lewison’s comments have proved influential and in the subsequent cases of Venulum Property Investments Ltd and Space Architecture and others 2013 Mr Justice Edwards-Stuart cited Judge Lewinson by stating that he regarded the new addition to sub-paragraph (f) to the overriding objective “as requiring the court to take a more robust approach when exercising a discretion to extend time for service of a claim form or particulars of claim
Venulum v, Space Artchitecture was a professional negligence claim in which the claim form had been served in time but the particulars of claim had not. An application was made to extend the time of service of the PoC.
Mr Justice Edwards-Stuart found 3 factors where of particular importance in considering whether the application for relief of sanction should succeed:-
- There had been an unexplained delay of 5 years before the Claimant had instructed solicitors.
- On the information and documentation before the Court the Claimant’s claim was not a strong one.
- The claim was a vaguely pleaded claim for bad faith
The Judge stated the following:-
“In my judgement when the circumstances are considered as a whole particularly in the light of the stricter approach that must now be taken by the Courts towards those who fail to comply with the rules following the new changes to the CPR, this is a case where the Court should refuse permission to extend time”
Shortly after this case the Judges considered the matter of non compliance again in the case of Fons HF v. Corporal Ltd 2013. This matter involved a late application to extend time for service of witness statements only three weeks after the deadline! Although the application was successful the Judge presiding gave this stern warning that he had:-
“come very close to refusing an extension to either of the parties” and referred to the fact that the “amended Civil Procedure Rules now require the Court to pay close attention on the failure of parties….a failure to comply with a rule direction or order is itself a clear breach of the overriding objective and is likely to result in severe sanctions”.
So you can see the Courts are taking a much stricter approach, however if you are unfortunate enough to miss a direction etc set down by the Court you may still be able to obtain relief from sanction if you :-
Make an application as soon as possible after you realise your error and attach a copy of the document you were supposed to serve etc and a clear and detailed Statement in support of you application explaining why there has been a delay. The Court will consider that there are unforeseen factors which can lead to delays, but do substantiate your explanation with any physical evidence you may have i.e. copy of sick note from your GP.
To avoid the stress of making such an application COMPLY WITH THE COURT’S DIRECTIONS and if you can’t apply to the Court PRIOR TO THE EXPIRY OF THE COURT’S ORIGINAL ORDER and seek the consent of your opponent.
by Deborah Aloba
of Affordable Law For You
This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.