It is difficult to exaggerate the importance of the Mitchell case on the litigation process over the past 12-18 months. In short, the Court of Appeal held that a party who sent their costs budget late was not entitled to “relief from sanctions”, i.e. to be allowed to serve the budget albeit late.1 A number of cases followed that decision. In April 2014 we found ourselves having to apply Mitchell in an adjudication enforcement case. James Mullen and Rachel O’Hagan of 39 Essex Street explain what happened.
On 12 March 2014, CBL commenced adjudication enforcement proceedings against Nordic. By an Order dated 13 March 2014, the Court gave standard directions which required Nordic to (amongst other things) file and serve its “further evidence” by 4 p.m. on 31 March 2014, and CBL to file and serve its evidence in response by 4 p.m. on 4 April 2014. CBL’s application for summary judgment was listed for Monday 14 April 2014, with the hearing bundles being due on 7 April 2014 and the skeleton arguments being due for exchange on 8 April 2014.
On 31 March 2014, Nordic submitted a Defence verified by a statement of truth from the Construction Manager of Nordic. However, Nordic failed to submit a witness statement to support its Defence, or any supporting documentation. On 2 April 2014, CBL’s solicitors wrote to Nordic, highlighting that Nordic had failed to serve any evidence, as required by the Court’s Order. Accordingly, CBL reserved its position as to whether or not Nordic had permission to file and serve a Defence and highlighted that the time for Nordic to file evidence had now passed and that CBL did not intend to include any of the additional documents referred to in the Defence within the hearing bundle.
On the evening of 3 April 2014 (the day before CBL’s responsive evidence was due), Nordic applied for: (i) relief from sanctions “following a misinterpretation of the Order of Mr Justice Ramsey dated 13 March 2014”; (ii) leave for Nordic to rely on the Witness Statement of its Construction Manager; and (iii) permission to vary the Court’s directions. In support of its Application, Nordic’s solicitor stated that he “did not file a witness statement on behalf of the Defendant [Nordic] through a misinterpretation of the Order”.
In the absence of a direction from the Court to the contrary, on 4 April 2014 CBL filed and served its responsive evidence in accordance with the Court’s Order dated 13 March 2014. CBL’s evidence and reply was prepared and filed on the basis that Nordic had not been given the permission requested in its Application for relief from sanctions. On the same day, CBL’s solicitors wrote to the Court opposing Nordic’s Application. Applying the guidance in Mitchell v News Group Newspaper Limited [2014] 1 WLR 795 (CA), CBL argued that Nordic’s failure was not trivial and that there was no good reason or explanation for the default. As to whether or not the default was trivial, CBL argued:
Nordic’s paper Application went before Mr Justice Ramsey who ordered: (i) Nordic was permitted to rely on its Defence as its evidence; and (ii) insofar as Nordic sought to pursue its Application, it would be heard at the substantive hearing on 14 April 2014. At the hearing, Nordic effectively withdrew its Application but maintained that a few documents that it wished to rely upon should be placed before the Judge.
Mr Justice Ramsey said there was no serious challenge to Nordic’s request for a limited number of documents to be put before the Court and so the Application for relief from sanctions had come to a natural end. However, he went on to say that had Nordic pursued its Application, it would have been refused. The reasoning was as follows:
This was an application to enforce an adjudication decision with a short timetable. This type of proceedings is subject to curtailed directions leading to a hearing within about a month of the proceedings being commenced. This means that there has to be compliance with the Court’s timetable. In this case, CBL’s responsive evidence had to be filed by 4 April 2014. CBL could not comply with this timetable if Nordic’s Application was not made until the day before. CBL had to respond to Nordic’s Application on 4 April 2014 and the hearing bundle was due to be filed on 8 April 2014, with skeleton arguments being exchanged on 10 April 2014. In the context of those directions, Nordic’s failure to serve evidence in response was not “trivial”. Further, the witness statement in respect of which relief from sanctions was sought ran to some 100 pages and CBL would have been required to respond to that statement.
The Judge found that Nordic’s Defence was properly before the Court as evidence. However, he did not accept that there was anything reasonably open to misinterpretation of the standard directions given by the Court.
The Judge said that had the Application been pursued by Nordic there would have been “no question of granting relief”. Everything pointed towards keeping costs proportionate and complying with orders of the Court. Therefore, had the matter come before the Judge seeking relief, it would have been refused. After giving judgment on the substantive matters and giving judgment in favour of CBL, the Judge had to consider the question of costs.
The Judge awarded CBL its costs of dealing with Nordic’s Application for relief from sanctions on an indemnity basis. In reaching his decision, he took into account that the Application had been made based on a “misinterpretation” of an order, yet there was no possibility of a reasonable misinterpretation of the Court’s Order which gave standard directions. It had been time-consuming and expensive for CBL to deal with Nordic’s Application and at a time when CBL was preparing for the substantive hearing.
Although Nordic’s Application for relief from sanctions was effectively withdrawn at the hearing, Mr Justice Ramsey was quite clear that had it been pursued, the Application would have been rejected. The Judge emphasised that compliance with the procedural timetable was even more important in adjudication enforcement proceedings where the procedural timetable was necessarily curtailed.
The judgment, together with the award of costs on an indemnity basis, sends out a clear message that the Technology and Construction Court intends to take a robust approach to parties who fail to comply with court orders/directions and that in considering whether or not relief should be granted, the TCC will apply the current jurisprudence.
For parties defending applications for relief from sanctions, there is also another important lesson to learn from the facts of this case. In the absence of a court order varying directions of a previous court order, stick to the current directions that have been issued by the court. In the event that a party fails to comply with the court’s directions in order to try and accommodate a procedural mishap of the other side, that party may also need to apply for relief from sanctions.
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