Timetables are timetables - caveat Expert
This case does not, on the face of things, concern experts at all. However, it is a very significant case for everyone involved in litigation and marks a truly momentous change in judicial approach as to how litigation is handled – and to the consequences for breaches of the rules. As such, it is worth reporting here because experts appointed under CPR 35 invariable work to judge-set deadlines. Taken together with experts’ loss of immunity in Jones v Kaney, it creates a heady mix which will cause more than one professional indemnity insurer’s phone to ring in 2014.
Until now, the general approach of the Courts to missed deadlines has been fairly liberal, even permissive; unless there was a really serious breach rendering a fair trial impossible, or where late service might jeopardize a trial date, deadlines for service tended to targets attempted rather than goals achieved. Because there was little serious sanction, both parties tended to allow general slippage to go unremarked-upon. A day late here, or a missed week there in the service of reports and the like rarely had any outcome. There was no real sanction save for costs.
The Jackson Review indicated that this ought to change, and that parties should be held to deadlines more rigorously, as drift tended to increase costs; “courts at all levels have become too tolerant of delays and non-compliance with orders. In doing so, they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system. The balance therefore needs to be redressed.”
This was one of the less well noted outcomes of Jackson LJ’s review. That might have been because the legal profession had been here before; the Woolf Reforms in 1999 had been accompanied by similar objectives and similar language, but in the event relief from sanction under CPR 3.9 was usually given save in the most egregious cases.
Mitchell is the first clear step that this time, 15 years later, the judiciary really means it. The facts were simple enough. In his well-publicised libel case arising out of the “Plebgate” affair, the parties were subjected to the new Costs Management regime, and so they were required to file formal Costs Budgets no later than 7 days prior to the first Case Management Conference.
Mr Mitchell’s solicitors failed to meet that deadline, with the effect that unless the Court excused the late filing, their Costs Budget was deemed approved only in respect of Court fees (i.e. Mr Mitchell against such an Approved Costs Budget Mr Mitchell would, even if he won his case, recover none of his legal costs). At first instance, the judge held that the other c.£506,000 worth of costs would be irrecoverable in any event.
Unsurprisingly, Mr Mitchell’s solicitors applied for relied from sanction under CPR 3.9. Under the “old” approach referred to above, it is likely that subject to having to pay the costs of that application, relief would have been granted. The prejudice to Mr Mitchell of being unable to recover £506,000 worth of costs was obviously far greater than the prejudice suffered by the late filing of the Costs Budget.
Not so under the new approach. The Jackson Reforms meant that a much tougher approach was required. The judge refused to grant relief from sanction. The Court of Appeal upheld the decision.
What does this mean for experts? Some obvious practical pointers are:
1. Experts will need to be clear and frank about their workload and whether they can get reports out on time;
2. Experts who take on instructions at the last minute when there are already deadlines set without their involvement are hostages to fortune. The old culture of “we can just get an extension” or “nothing will happen if we serve late” simply no longer exists;
3. Experts will need to liaise closely with the legal team to make sure deadlines are set for their work which are reasonable and which they can meet;
4. Everyone will have to think much more carefully – and liaise much more closely – about the likely “critical path” for producing reports, and all the likely places where there might be potential for delay. For example, if inspections are needed, when can they be carried out? If a draft report is to be circulated in advance, will there be sufficient time?
5. It is likely that if deadlines are missed, a relief from sanction application will be required. If the expert is a, or the cause of the missed deadline, litigants are likely to look to the expert’s professional indemnity insurance to contribute to the costs of that application – and indeed for considerably more than that if relief is not granted.