James Bickford Smith summarises recent decisions on civil procedure and litigation of importance to practitioners.
Introduction
It is some time since this column provided a conspectus of recent case law concerning differing aspects of civil procedure. This partly rejects a long run of decisions each meriting individual treatment. Fortunately, while there have been some interesting decisions on civil procedure over the last month or so, the bases of those decisions are sufficiently clear for them to be briefly summarised. Hence this round-up, whose key themes will be familiar to regular readers of this column: first, finality issues; second, the scope and application of the rules concerning litigants in person; third, relief from sanctions.
Finality Issues
In Prompt Motor Ltd v HSBC Bank plc [2017] EWHC 1487 (Ch) the court was faced with an application to set aside a court order of 27 October 2011. The basis of the application was CPR 3.1 (7), which permits a court to vary or revoke orders. Case law over recent years has circumscribed the apparently broad scope of that power, albeit that its exact boundaries remain the subject of debate. HHJ Paul Matthews, sitting as a Deputy High Court Judge, summarised the current state of the jurisprudence as follows:
“It is clear that the rules of procedure confer the power on the court expressly to vary or revoke orders that have been made: see CPR rule 3.1 (7). I was referred in particular to the notes in the White Book at paragraphs 3.1.10 and following. A number of authorities are referred to in those notes, and I have looked at some of those. A particularly important distinction is between those cases where the order that was sought to be revoked or varied was purely procedural, or interlocutory, and those where it was final, in disposing of the claim or some part of the claim.
…
In my judgment, the effect of these authorities is clear. Cases of final judgment or orders, including those made on admissions, by default, by consent or, indeed, on summary judgment application, are different from interlocutory or case management orders. In the latter class of case, rule 3.1(7) can be exercised by the court in cases of decision on a false basis or where there has been a material change in circumstances. In the former class of case, including the present one, the bar is deliberately placed higher, in order to satisfy the increased public interest in achieving a final result to litigation.”
(Prompt Motor Ltd v HSBC Bank plc, at paragraphs 21 and 30.)
Applying these principles to the facts of the case, the learned judge dismissed the application, holding that he had no jurisdiction to grant it, and that even had he had such a jurisdiction he would not have exercised it in the applicant’s favour.
Conversely, in Vald. Nielsen Holding A/S and another v Baldorino and others [2017] EWHC 1033 (Comm), an applicant was successful in avoiding the conclusion that a previous determination of their application for security for costs had been final. The case illustrates the difficulties that can arise in determining whether there has been a “change of circumstances”, where an interim application has been determined on the basis of likely procedural developments that then eventuate slightly differently from what one party had expected. The defendants were successful in establishing a change of circumstances, and thereby securing further security for costs, notwithstanding that much of what subsequently transpired in the proceedings (amendment and adjournment) had been in contemplation when the initial application was determined by a different High Court judge. The decision will be of interest to those seeking to reopen applications.
Between them, these decisions underline:
Litigants in person and the scope of reserved activities
The complexities of determining when someone is litigating in person have been discussed in previous columns. In Halborg v EMW Law LLP [2017] EWCA Civ 793 a strong Court of Appeal has held that solicitor practices structured as LLPs and conducting litigation on their own accounts are not to be taken to be litigants in person within CPR 46. Accordingly, their costs recovery is not limited to the level of costs allowed to litigants in person under CPR 46.5(2) and PD 46 paragraph 3.4. This will be of considerable importance to solicitors’ practices litigating on their own account.
In Ndole Assets Ltd v Designer M&E Services UK Ltd [2017] EWHC 1148 (TCC), Coulson J held that where a company not authorised to conduct reserved legal activities served proceedings on behalf of a litigant in person, that did not render service ineffective or a nullity. The reasons for this were as follows:
“33. … Claim Forms and Particulars of Claim are regularly served by process-servers, all over the country, every working day of the week. Such process-servers are not entitled to carry out reserved legal activities. Accordingly, [Counsel] argued, the service of these documents by CSD cannot be a reserved activity.
34. In my view, the (partial) answer to this is that process-servers are engaged by the relevant solicitors to carry out this particular task. They have the solicitors’ delegated authority to serve the documents. In those circumstances, since the solicitors on the record are responsible for the carrying out of all reserved legal activities, the solicitors remain responsible for the service of the documents, even if they have sub-contracted the task to professional process-servers. In that way, there is nothing inconsistent in concluding that the service of proceedings by process-servers is a reserved legal activity, for which the solicitors on the record are and remain responsible.
35. So what happens in a case like this, where there are no solicitors acting, and the claimant is a litigant in person? This was not a point that was addressed fully in submissions, because the principal points taken by Ndole were those which I have set out (and rejected) above. But the short answer must be that, as a litigant in person, the claimant is permitted to serve these documents. That is what the CPR says: r.7.5 refers to ‘the claimant’. So if Mr Laznik, the sole beneficial owner of Ndole, had served the documents on Designer on 31 January 2017, there would now be no difficulty.
36. So the final question is whether, as a litigant in person, Ndole (or Mr Laznik) was entitled to delegate that task to Mr Dain. In my view, it was. It would be nonsensical to conclude that, whilst a solicitor can delegate the carrying out of this task to a third party, a litigant in person cannot do so. There would be no basis for such discrimination. Accordingly, I have reached the view that, whilst a litigant in person can serve a Claim Form and Particulars of Claim himself, he can also ask an agent to do it on his behalf. That is what happened here. I am therefore not prepared to say that service in this case was unlawful.”
Both cases serve to underline a theme discussed in previous columns, namely the courts’ willingness to take a benevolent (or on some views lax) view of elements of the CPR or related secondary legislation that could be taken to circumscribe the ability of parties to conduct litigation (and recover their costs of doing so) other than through external solicitors’ practices.
Relief from sanction
Two recent decisions in this area do merit mention.
First, Redbourn Group Ltd v Fairgate Development Ltd [2017] EWHC 1223 (TCC) is important for three reasons:
“Given the seriousness of the delays, the court is bound to take a very adverse view of Mr Love’s wholesale failure to explain each of the matters noted in paragraph 77 above. It is always incumbent upon a solicitor seeking relief from sanctions to explain why something is late or why a proffered date could not in fact be met. On that topic, an analogy can be drawn with the recent trend in cases concerned with late amendments, such as Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), where Carr J made plain that, on the recent authorities, the absence of a proper explanation for delay will often, without more, lead to the application to amend being refused.”
(Redbourn Group Ltd v Fairgate Development Ltd, at paragraph 80.)
Second, in Gladwin v Bogescu [2017] EWHC 1287 (QB) Turner J had to confront an appeal from an unusual relief from sanctions decision (see Legal update, Effect of failure to serve witness statements on time (High Court)). This requires a little more detail than was needed to summarise Redbourn, the best summary being that of Turner J himself:
“1. This case started life as a very straightforward and relatively low value road traffic accident claim but thereafter descended into procedural chaos. Responsibility for this state of affairs is entirely that of the claimant’s solicitors who have, through a combination of complacency and procrastination, proceeded as if compliance with the Civil Procedure Rules and the orders of this court were of scant importance. This left His Honour Judge Gregory trying valiantly to rescue what he could from the procedural wreckage when the matter came before him for trial on 8 February 2017. In the event, he granted the claimant relief from sanctions notwithstanding his solicitors’ serious breaches for which no good reason had been provided and the direct consequence of which was the vacation of the trial date.
2. In reaching this conclusion the learned judge considered that, on the very particular facts of this case, the consequences of refusing relief to the claimant would be more prejudicial to the defendant than if relief were to be granted. He thus applied the judicial equivalent of the advantage rule in rugby union and allowed play to continue without formally penalising the offender.”
(Gladwin v Bogescu, at paragraphs 1-2.)
Turner J’s finding was that the first instance judge had erred by granting relief from sanctions in circumstances where a claimant had failed to serve a witness statement on time. Turner J held that the judge should have proceeded to refuse relief from sanctions, refuse the claimant permission to rely on the late statement as hearsay evidence under the Civil Evidence Act 1995, and strike the claim out.
The question mark over this decision is not as to whether Turner J’s approach to the question of relief from sanction is one consonant with recent authorities (it most likely is), but rather whether Turner J was right to take such a view on an appeal from a judge who had granted relief. It is comparatively rare to see successful appeals from grants of relief, and findings that a series of robust decisions should have been made at first instance even rarer. This said, the facts of the case are such that the grant of relief at first instance was at the borderline of judicial discretion. A material factor behind that grant seems to have been ambiguous wording in a court order, coupled with a general assumption, when the case was argued at first instance, that the claimant could have brought the statement into play via the Civil Evidence Act 1995 and thereby evaded cross-examination. As Turner J makes clear, this assumption was incorrect.
Both decisions serve to underline that while the high water mark of post-Jackson practitioner concern over CPR 3.9 has passed, the rule retains its teeth and continues to lead to some courts taking a tough approach to procedural default.
