There are various matters which need to be discussed but one of the things that has become very clear is that the Courts will not be willing to tolerate unreasonable delay any more when dealing with time limits set down by the Courts.
Litigants in Person were provided with a certain amount of leaway for many years. However, in two recent Court cases
Mitchell v Newpaper Group Limited and
Durrant v The Chief Constable
the Court of Appeal has reiterated that the need for litigation to be conducted efficiently and at a proportionate cost, and the need to enforce compliance, are the two key considerations in any relief application.
The harshness of the decision in Mitchell and Durrant has been defused slightly with the decision in Denton v The White Limited
The first stage of a test for relief is to ask whether the breach of the direction/court order is 'serious or significant'.
What is a 'serious of significant' breach? Often the answer will be determined by whether or not a breach has had a material effect on the case specifically and litigation generally. However, there are instances where materiality will not be the appropriate test. There are breaches which are not capable of affecting the efficient progress of the litigation, even though they may be serious (e.g. the failure to pay Court fees).
Judges have acknowledged that what is 'serious or significant' is not a hard-edged concept, but is a concept that should be approached with a degree of common sense. It is important to Note that the Court specifically stated that in assessing the seriousness of a breach, the history of compliance was not to be considered.
In looking at what constitutes a 'good reason' Mitchell remains good law. Mere overlooking of a deadline or the general pressures of work will still not constitute a good reason for failure to comply.
Judges have confirmed that in assessing whether an application is likely to fall at the third stage, they have to consider all the circumstances of the case. The promptness of the application will still be a factor, as will the history (if any) of past breaches of the rules, practice directions and orders.
The third stage of the test for relief is still liable to be misunderstood. The comments that clarified the third stage of the test should give litigants vital guidance as to what type of applications will fail and what type of applications will succeed. The Court wished to:
"...make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage." (See para 41 of the Denton Judgment)
Courts will punish litigants who try to take advantage of the Court's more stringent approach with heavy costs penalties.
This will include (for example) recording in the Order that the failure to cooperate constitutes 'unreasonable behaviour' within the meaning of CPR 44.11.
Finally, it can be hard to stand up for yourself in Court if delays etc have been caused by the Court but you must bring this to the Court's attention, if this is the reason for any delays that affect your claim so that the Judge has the whole picture and you are not unfairly penalised.
In the recent cases the Court of Appeal made it perfectly clear that they were not willing to tolerate unreasonable delay by all Litigants, including Litigants in Person, any more so you need to be aware that you must comply with any timetable that the court sets out otherwise it could prove fatal to your claim.
So let's review some basics:
If you are named as a Defendant in proceedings and are served with a claim form, you have 14 days in which to acknowledge service of proceedings, no matter how shocked or upset you are make sure you acknowledge the proceedings because if you don't Judgement can be obtained against you and this will have an effect on your credit rating. Having filed your Acknowledgement of Service at Court you must ensure that you lodge your Defence and Counterclaim within 28 days of service of proceedings, don't forget you can telephone the other side and ask for an extension of time. If you do request an extension and the Claimant agrees, make sure that this is confirmed in writing, then there can be no problems if the Claimant does proceed to enter Judgment prior to the agreed period concluding.
Once you have lodged your Defence, the Court will write to you with a Directions Questionnaire and you will have to clarify if your case is in the fast track (valued between £10,000 and £25,000), or in the multi-track (if your case is worth in excess of £25,000) you will have to fill in a form N181. If your case is in the multi-track you will also need to complete an estimate of costs Form H. If you don't fill in this form don't forget you may not be able to obtain your costs if you win your case. The Court will give a date on the front of the Directions Questionnaire by which you have to file a completed DQ at the Court, don't miss that deadline, the Court can decide to strike out your Claim or Defence if you do not submit your Allocation Questionnaire in time, if you are late filing an DQ you will normally receive an order from the Court providing you with a further seven days to file the DQ, that will be your last chance. Once Directions Questionnaires have been filed at the Court and served on your opponent the Court may provide you with a date to attend a Case Management Conference. This is a hearing before the Judge when the Judge will provide a timetable (called Directions) as to how your case should be conducted. Both Claimants and Defendants have to comply with the Court's Directions and in the event that either party does not comply with a Court direction then the opposing side can now apply to the Court for the other parties claim to be struck out, and based on the Court's recent rulings, their application could be successful.
If The Claim is allocated to the Fast Track, Standard Directions look like this:
At all stages the parties must consider settling this litigation by any means of Alternative Dispute Resolution (including Mediation); any party not engaging in any such means proposed by another must serve a witness statement giving reasons within 21 days of that proposal; such witness statement must not be shown to the trial judge until questions of costs arise.
a) by 4pm on xxxx the parties must give to each other standard disclosure of documents by list and category.
b) by 4pm on xxxx any request must be made to inspect the original of, or to provide a copy of, a disclosable document.
c) any such request unless objected to must be complied with within 14 days of the request.
d) by 4pm on xxxx each party must serve and file with the Court a list of issues relevant to the search for and disclosure of electronically stored documents, or must confirm there are no such issues, following Practice Direction 31B.
a) by 4pm on xxxx all parties must serve on each other copies of the signed statements of themselves and of all witnesses on whom they intend to rely and all notices relating to evidence.
b) Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the Court.
c) Evidence of fact is limited to xx witnesses on behalf of each party.
d) Witness statements must not exceed xx pages of A4 in length.
No expert evidence is necessary.
a) by 4pm on xxxx the Claimant must send an up to date schedule of loss to each other party.
b) by 4pm on xxxx a Defendant, in the event of challenge, must send an up to date counter-schedule of loss to the Claimant.
a) The trial window is between xxxx and xxxx inclusive.
b) The estimated length of trial is xx days.
c) By 4pm on xxxx the parties must file with the court their availability for trial, preferably agreed and with a nominated single point of contact. They will be notified of the time and place of trial.
d) By 4pm on xxxx pre-trial check lists must be sent to the court.
a) There will be a pre-trial review 4 weeks before the trial window starts with a time estimate of 30 minutes.
b) The pre-trial review will may be conducted by telephone if the parties so agree, unless the court orders otherwise. The Claimant must make the relevant arrangements in accordance with Practice Direction 23A Civil Procedure Rules.
c) At least 3 clear days before the pre-trial review the Claimant must file and send to the other party or parties preferably agreed and by email:
i) draft directions
ii) a chronology
iii) a case summary
a) Not more than 7 nor less than 3 clear days before the trial, the Claimant must file at court and serve an indexed and paginated bundle of documents, which complies with the requirements of Rule 39.5 Civil Procedure Rules and Practice Direction 39A. The parties must endeavour to agree the contents of the bundle before it is filed. The bundle will include:
i) a chronology
ii) a trial timetable
b) the parties must file with the court and exchange skeleton arguments at least 3 days before the trial by email.
Because this Order has been made without a hearing, the parties have the right to apply to have the order set aside, varied or stayed. A party making such an application must send or deliver the application to the court (together with any appropriate fee) to arrive within 7 days of service of this Order.
Sometimes the Court will give directions without a case management hearing and as can be seen from No 9 above in these situations if you do not agree with the directions you can apply within the time provided by the Court to set aside, vary or stay the Court's directions.
IF YOU IGNORE THESE DIRECTIONS YOU DO SO AT YOUR PERIL.
If you cannot comply with one of the directions, either ring your opponent or their representative and see if you can agree a short extension (if they agree make sure it is confirmed in writing) or alternatively make an application to the Court seeking an extension of time
MAKE THE APPLICATION BEFORE THE DATE REFERRED TO IN THE DIRECTIONS EXPIRES.
You will need to make an application by using a Form N244. Inform the Judge (who will consider your application) of the reason that you cannot comply with the Order. It will have to be a good reason.
"I didn't have time" or "I was too tired" will not be considered a good reason. There has been a death in the family or I have been ill will be good reasons. However, you will be expected to provide proof so if you are ill make sure you get a note from your GP.
If a Judge can see that you have made a good attempt to deal with your claim within the timetable laid down by the Court then when you do need to apply for an extension of time in respect of a particular direction it is likely that he/she will be more open to granting an order in this regard when you need one, though note that.
IF YOU HAVE MISSED A DEADLINE, DON'T DELAY. IMMEDIATELY MAKE AN APPLICATION TO THE COURT. THE LONGER YOU LEAVE IT TO MAKE A SUBMISSION THE LESS TOLERANT THE COURTS WILL BE.Deborah E Aloba - This article is for information purposes only
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