PI Brief Update

Compliance With Court Orders: Fons HF v Corporal Ltd & Pillar Securitisation [2013] – Paul Stanton

04/07/13. Another of the early cases on "relief from sanctions" has been reported on 9th May. Fons raised the question of whether or not HH Judge Pelling QC should extend the time for filing of witness statements-notwithstanding neither (active) party had complied with two earlier case management Orders dealing with the deadline for filing.

Reference to the "overriding objective" features early in the Judgement, and HHJ Pelling was extremely conscious of the requirement in the amended CPR for "the Court to pay close attention on the failure of the parties to comply with rules, directions and orders". The Learned Judge further stated that "a failure to comply with a rule, direction or order is of itself a clear breach of the overriding objective and is likely to result in severe sanctions". Further, he referred to the fact that the case was listed for a trial for five days, when in fact it should only need "a fraction of that time, with the result that a valuable national resource, namely court sitting days, will be wasted as a result of the failure of these parties to comply with the directions given by the district judge".

A salutary warning then followed that "all parties and the wider litigation world should be aware that all courts at all levels are now required to take a very much stricter view of the failure by parties to comply with directions, particularly where the failure to comply is likely to lead into a waste of the limited resources made available to those with cases to litigate".

So, in view of the above, it should be easy to anticipate the outcome of the request for an extension of time to file witness statements. Unfortunately not! HHJ Pelling stated that he had come very close to refusing the extension, but instead gave an extension-until 4pm the very next day! This was seemingly on the basis that the hearing took place "a very short time" after the CPR had been amended, and not long after the time to file the witness statements had expired. [Surprisingly, the Judge did not make reference to Rule 32.10 in his judgement-that Rule clearly stating that failure to serve in accordance with a court specified time means a witness can not be called to give oral evidence, unless the court gives permission.]

The writer's view is that the Judge would have been more consistent by refusing altogether the application for an extension-for fear of rendering the logic/reasoning in the judgement as little more than rhetoric. Arguably the granting of the extension undermines the "zero tolerance" envisaged in Venulum, and certainly gives out mixed messages-with no real guidance on the Rules. At what point in time are we no longer within "a very short time after the amendment of the CPR"? Has clarity been sacrificed for the sake of a 24 hour extension? Only time will tell. The message remains that practitioners risk being on the receiving end of professional negligence litigation if they fail to comply with "rules, directions and orders". If you are lucky enough to get an extension it will not be a long one! Apparently this message will become stronger the further away we move from 1st April 2013-the date the amendments to the CPR were introduced.

Paul Stanton

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