Rochefort, D’Artagnan and relief from sanction under CPR 3.9

As any film buff knows, by far and away the best ever film version of Alexander Dumas’ “The Three Musketeers” is the one directed by Richard Lester and released in 1973; as it would be with an iconic cast and a screen play by George MacDonald Fraser, who wrote the racy but witty Flashman novels.

One scene that has always stayed in my mind is an exchange between the menacing Cardinal Richelieu (Charlton Heston) and the master swordsman Rochefort (the peerless Christopher Lee). Richelieu asks Rochefort if he has killed D’Artagnan in a street fight, as he has been instructed to do. Rochefort admits he has not. Richelieu demands a reason for this calamity. With apparent equanimity Rochefort/Lee replies:

“I failed. One does occasionally.”

And so one does (although I have heard it said by some wiser than me that the most successful people are those willing to fail most often but go again anyway). But I digress.

Last Monday I was back in the fertile lands of relief from sanction under CPR 3.9 and “Jackson”, “Mitchell” and “Durrant”.  It was not totally without interest.

My client was the defendant. He was being sued for a substantial sum of money (£70,000) by the claimant. The claim was vigorously defended. My task was to resist an application for relief from sanction.

Chronology and default

• On 22nd September 2014 at the first CMC, a district judge gave directions including that there be exchange of lists of documents by 31st October, and exchange of witness statements on 5th December.
• The order was indorsed with the now standard form of warning of the consequences of default (although some judges seem to ignore this) as follows:

“Warning: you must comply with the terms imposed on you by this order otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make formal application to the court before any deadline.”

• On 31st October the defendant’s solicitors complied by providing lists of documents by e mail and post. Nothing was heard from the claimant’s solicitors.
• On 5th November 2014 the defendant’s solicitor wrote to ask the claimant’s solicitors to comply with the order and provide a list of documents. There was no reply to that letter.
• On 18th November 2014 the parties met for mediation, which failed.
• In accordance with the order, on 5th December the defendant’s solicitors served a witness statement. It simply said the claim was disputed for the reasons set out in the defence, and that they had received no list of documents from the claimant and reserving the right to put in further evidence later on if and when a list documents was received. Once again, the claimant’s solicitors served nothing.
• On 15th January 2015 the district judge who had given the original directions listed the case for active case management conference on 13th April and ordered that at least 7 clear days before the case management conference the claimant must file and send to the defendant other party, draft directions, a chronology and a case summary. The actual date for compliance with that order was 2nd April (because of Easter and Bank Holidays). Nothing was served or filed by the claimant.
• Finally, on 8th April 2015 the claimant’s solicitors served an application under CPR 3.9 for relief from sanction on the defendant’s solicitor by email with supporting witness statement (10.41 am) and a case summary and other documents ordered under the order of 15th January 2015 on the defendant’s solicitor by email (19.45 pm). That was not sufficient to give the requisite 3 days notice under CPR 23 in any event.

The arguments

There was a side argument about whether there had been an oral agreement to extend time for compliance under the original directions order by 28 days at the mediation. I do not doubt that there was no such agreement, and in any event it would not comply with the new CPR 3.8.4, which permits an agreed extension for compliance for up to 28 days, provided (i) it is made in advance of the date ordered for compliance, (ii) it is in writing. That is worth a short note on its own, but I will leave that for now.

It was common ground that following Denton the court should apply a three-stage test in deciding whether or not to grant relief:

1. The first stage is to determine whether the breach was “serious or significant”, and what the degree of seriousness was.
2. The second stage is to consider whether ‘good reason’ had been given for the breach. See Denton at para 35: “The more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it”
3. The third stage requires the court as per the wording of CPR 3.9(1) to consider “all the circumstances of the case, so as to enable it to deal justly with the application”. Factors (a) and (b) of CPR 3.9(1) (the need for efficiency and proportionate cost, and the need to enforce compliance with the rules) should be of “particular importance” when considering all the circumstances. Other factors include delay in making the application for relief.

The claimant’s case in favour of relief was:

• It was admitted that the breach was serious; but
• There were explanations for the delay which were a mix up and a mistake on the part of the solicitor concerned;
• In fact there was no default in respect of the disclosure obligation. Unlike the wording of rule 32.10 (which says that if witness statement is not served on time, the witness may not be called to give oral evidence unless the court gives permission), rule 32.21 dealing with the obligation to give disclosure does not impose any sanction in respect if the time when a document is disclosed. That is a consequence of the continuing obligation to give disclosure; and
• No trial date had been put off. The litigation could still be put on track with a tight timetable and sanctions against the claimant for any future default. It would be a disproportionate result to leave the claimant in a position in which he could not lead any evidence: Chertwell Estate Agents Limited v Fergies Properties relied on.

The defendant’s against relief case was:

The breaches were very serious. The claimant had simply ignored the case management directions, or even the alleged revised dates. The litigation had been set back by 6 months and more court time is being used now.

• There was no good reason for the breaches. It was not clear what is being said about the reasons in the witness statement in support of the application.
• The two circumstances specifically mentioned in r3.9 are (a) the need for litigation to be conducted efficiently and at proportionate cost and (b) the need to enforce compliance with directions and orders. The claimant had simply ignored the timetable.
• Other factors to be taken into account include whether the application for relief is made promptly, and whether the party has a poor record in compliance.  The application for relief was not made promptly and the timetable was littered with failures.
• The claimant did not have to proceed to trial without evidence. He could do that, or he could discontinue and pay the costs of the action and start again. That was a somewhat controversial proposition because a claimant cannot do that after a defence has been made without permission of the court. Certainly a claimant would face a risk of not being able to do so.

Result

Whilst it was a close call, and the claimant’s solicitors received some pretty damning criticism from the district judge, the claimant got away with it.

The claimant’s technical point about the lack of sanction for breach of the disclosure obligation got short shrift from the district judge. I have seen it run before and it always does. The specific timetable and the express threat of sanction if it has not been obeyed are always regarded as more important.

The district judge assessed the seriousness of the breach as in the middle of the range, and found that the reason for the breach was incompetence rather than willful default (I am not sure about that).

In the end, the district judge backed off from the discontinuance argument (understandably) and was swayed by the lack of proportionality in preventing the claimant from adducing any evidence, and allowed the claimant relief.

However, relief was given on terms. A tight timetable was imposed and the claimant’s obligations in future were garnished with “unless orders”. In addition, the defendant was awarded his costs of putting in a new witness caused by the claimant’s failure to give disclosure, if any (and there will be) and his costs of resisting the application for relief.

I am not sure the decision of the district judge was correct; nor am I sure it was incorrect. It was a “robust case management” decision within his discretion. So be it. Another day, another judge, and maybe a different result.

I feel a bit flat. In the words of Rochefort: “I failed. One does occasionally.”

I have set out the rest of that dialogue below. Truly, the internet is a wonderful thing.

Cardinal Richelieu: If I blundered as you do, my head would fall.

Rochefort: I would say from a greater height than mine, Eminence.

Cardinal Richelieu: You would?

Rochefort: The height of vaulting ambition.

Cardinal Richelieu: You have none?

Rochefort: No.

Cardinal Richelieu: Do you fear me, Rochefort?

Rochefort: Yes, I fear you, Eminence. I also hate you.

Cardinal Richelieu: I love you, my son. Even when you fail.

David Partington

David Partington specialises in civil procedure and regularly represents parties in relief from sanction and similar applications. To book David, please speak to Talia Webster on 0113 213 5207.