We are all now familiar with the infamous plebgate incident concerning the former Minister Andrew Mitchell. That is story which is very well covered elsewhere. But there has been a sub-plot to all this which has caused most litigation lawyers sleepless nights.
Mr. Mitchell sued the Sun Newspaper for libel. That was always going to be a high profile and expensive case. In matters like this is necessary for lawyers to file costs budgets at court. The idea is to control the level of costs. The court ordered the parties to attend a preliminary hearing on 10th June 2013, later changed to 18th June, due to an error by the court. In preparation for this the lawyers for both sides were to file draft budgets 7 days in advance.
Mr. Mitchell’s lawyers failed to do this on time. They filed their budget the day before the hearing. The cost of that delay has been catastrophic. If Mr. Mitchell wins his case he will recover no legal costs at all apart from court fees. Those costs are estimated to exceed £500k. In reality his lawyers will simply not get paid. In the case of a small firm this would probably lead to closure and job losses.
The lawyers asked the judge to allow ‘relief from sanctions’ under the court rules and were refused. This week the Court of Appeal upheld that decision.
This is part of a new and tough regime imported from Singapore which dramatically restricts the court’s powers to exercise discretion in the face of delay. It is all part of a drive to save money in relation to the administration of civil justice. It seems that Lord Justice Jackson, whose report has driven most of the recent ‘reforms’ visited Singapore and was impressed by their zero tolerance approach to deadlines.
Nobody would argue that lawyers should disregard deadline set by the courts. But until this year was always some acknowledgement that nobody is perfect i.e. that there can be slippage or even human error, as there was by the court itself in this case. So if a claim was struck out because a document was lodged a few days late the claim could be reinstated and the lawyers penalised by having to pay any costs incurred in sorting out their breach. That actually worked quite well despite rhetoric to the contrary.
We now have a situation where citizens will be deprived of justice due to administrative failings which are quite capable of correction. Alarmingly the Court of appeal appear to acknowledge this. Lord Justice Dyson said –
“There now has to be a shift away from exclusively focussing on doing justice in the individual case”.
If that is the case then let’s stop calling it a justice system?
There will be some exceptions for ‘trivial’ breaches or in the case of illness or accident! But there is no exception for simple human error. I have been practising law for over 30 years and would never dream of claiming perfection! I do have an efficient system for logging dates but if I mistakenly record a date as 02/03/14 instead of 03/02/14 it could have disastrous consequences.
I predict two possible consequences. Firstly there will be a deluge of claims against lawyers by claimants who lose their claims for administrative reasons. Secondly the courts will be overrun with applications by lawyers applying for extensions of time because they are terrified of the commercial consequences.
Going back to the Mitchell case, the lawyers were clearly at fault. They should have lodged their budget in time. But a business could close here with inevitable job losses. Is that a proportionate sanction? There was no prejudice at all to the Sun who have a windfall of unimaginable levels. The only prejudice was to the court’s administrators who had to find some additional diary time.
We should have a justice system based on justice and not the convenience of court administrators. At this rate I can see litigators packing up shop and heading out of the country – but not to Singapore!