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© Weightmans LLP Civil Litigation Today……Jackson, Mitchell et al A presentation for the Manchester Claims Association Key contact: Michael Green Partner (& Deputy District Judge) 19 th June 2014
© Weightmans LLP Stating the Obvious ▪‘ First principles’. It sounds obvious, but always have in mind the overriding objective. It is often overlooked but is the guiding principle of the CPR and all case decisions refer to it at some point. ▪Whenever approaching a Jackson / Mitchell type issue, use this as your guiding principle and visit it at the start and the end of your approach.
© Weightmans LLP The Overriding Objective – new elements ▪To deal with cases ‘justly and at proportionate cost’. It has also now added: ▪allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and ▪enforcing compliance with rules, practice directions and orders
© Weightmans LLP Top Tips (avoiding breach) ▪Do not commence proceedings until you are in a proper position to do so ▪If you cannot control the above, make sure you throw time and proper resource at a claim immediately. Do not take the ‘old’ style approach of doing the bare minimum until you are under time pressures and forced to deal substantively ▪Always comply with the terms of Orders. No exceptions. ▪Read all orders and notices you get very carefully. There can be variations between Hearing Centres (as they are now called) in both the small print and the standard form orders for directions – for example, some build in automatic sanctions!
© Weightmans LLP Top Tips (avoiding breach) (cont) ▪When filing your DQ, always file a draft Order for directions that you have thought through carefully and requires minimal Judicial input – that way you are more likely to have your draft order approved and have your preferred timetable ▪The same applies to any CMC. Parties all too often agree directions they know may be difficult to comply with and set themselves up to fail. If there is an issue, or longer is required, say why and push for the extra time at the CMC. It will assist upon any future application for an extension or (heaven forbid) relief from sanction ▪Know your service rules. Does your opponent accept service by fax/ ? Do you know your clear day rules (revisit CPR 6)
© Weightmans LLP Top tips (avoiding breach) (cont) ▪Experts – have them named and lined up before DQ/CMC. Also - are they Mitchell compliant? The best are already cutting down their workload. Find out their turnaround times (as well as costings) as you may need to use someone else. Send your expert a copy of the Order. This is a requirement for Practice Direction 35.8 anyway ▪Use your diary and case management systems. Do not leave it until the last day before the deadline to comply ▪Wherever possible – co-operate with the other side and show you have done so in open correspondence. Seek to agree any permitted variations in good time (CPR 3.8) (“buffer orders”)
© Weightmans LLP Do’s and Don'ts ▪Do: ▪Always commence work on any task at the earliest opportunity (you may have to show this later) ▪Always exchange information openly with you opponent on timings and any difficulties in the timetable ▪If you are struggling and unlikely to meet a deadline, always issue your application before the deadline expires ▪The best applications show real efforts to comply in a timely fashion; detail why compliance has not been feasible (or are honest about failings); show attempts at co-operation with your opponent to avoid troubling the court and then apply in good time for an extension
© Weightmans LLP Do’s and Don’ts (cont) ▪Don’t : ▪Ignore the above list and engage in conduct than runs contrary to the overriding objective, at any point – it will catch up with you! ▪Hide any failure to comply from the court or any other party ▪Fail to apply for relief immediately in the hope you may sort it out with the other side or apply to the trial judge (or that it may not be picked up at all); or take technical points to gain advantage
© Weightmans LLP Relief from Sanction ▪First of all, check there is actually a sanction (and not simply the warning at the top of many orders that some have mistakenly viewed as a sanction). ▪Issue your application promptly or you potentially fall at the first hurdle. If you apply and the breach is trivial and you apply promptly, you have a reasonable chance of being successful. ▪If opposing such an application, weigh your approach carefully. It may often be safer to adopt a neutral stance than fully oppose – as relief may only be granted by the court and not by consent. This must be judged on a case by cases basis.
© Weightmans LLP Relief from Sanction (cont) ▪When applying for relief, always do so as soon as practicable; on notice (not on paper as many try); and seek the views of your opponent. The decision rests with the court, but it will assist if your opponent is not claiming prejudice. ▪If applying, weigh up whether to offer costs as a sanction to your opponent to try and defuse any battle on the application relating to costs only prejudice. It is unlikely you will escape this sanction anyway, even if being granted relief and agreeing this up front improves your prospects and keeps costs to a minimum (refer to earlier advice on overriding objective).
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