R (Letts) v Lord Chancellor - Legal Aid in Art.2 Inquests

By Richard Borrett

Introduction
The High Court has considered a challenge to the criteria applied by the Legal Aid Agency (LAA) in deciding whether the grant legal aid for representation at inquests which might engage Article 2 (A2) ECHR. The Judgement is available on BAILII here.

Issues
In certain deaths, A2 is engaged, the state has a duty to investigate the death and the investigation must meet certain requirements. One of those requirements is the involvement of the next-of-kin in the process. That requirement means that in certain cases the state might be required to grant legal aid.

The Lord Chancellor's Exceptional Funding Guidance, promulgated under LASPO endeavours to identify the steps that a caseworker, facing an application for legal aid to cover representation at an inquest, must take. The Guidance identifies two steps or conditions which must be passed in order to warrant legal aid. The first is that the case must fall within Article 2; the second was not in issue.

The guidance seeks to define the ambit of an A2 case, stating that the procedural obligation "only arises in a narrow range of circumstances where the evidence suggests that it is arguable that the State has breached its substantive obligation to protect life" (see [53]).

The essential basis of the challenge was that this guidance is an error of law or that it is misleading. The Claimant submitted:

• - (i) that there are categories of Article 2 case where for the investigative duty to arise there needs first to be an arguable breach by the state of the substantive obligations; but 

• - (ii), that there is also a significant category of cases where if the basic facts of the case fit within a category of case to which Article 2 can in principle apply the investigative duty arises automatically and without there being a need to establish even a hint of culpability on the part of the state. 

The Decision
Mr Justice Green therefore considered in some detail ([71] onwards) when the procedural obligation is triggered, in the context of psychiatric involuntary patients.

At [73]-[74] the Judge considered R (Smith) v Oxfordshire Deputy Assistant Coroner [2010] UKSC 29 and said:

... five categories of death where the substantive rights contained within Article 2 have been held to be potentially engaged "…with the result that the procedural obligation has been held to exist". These categories were: killings by State agents; deaths in custody; conscripts; and, mental health detainees. The fifth category is "… other situations where the State has a positive substantive obligation to take steps to safeguard life". With regard to the category of mental health patients Lord Mance cited Savage of which he stated:


"…although concerned not with any duty to investigate under Article 2, but with responsibility in a claim for damages for the suicide of a mental health detainee who succeeded in absconding and committed suicide – highlights the analogy between the State's duty towards persons in custody and persons in detention for mental health reasons as well as conscripts".

1. In these cases the courts have held that the mere fact of death gives rise to a "possibility" of State complicity and that this suffices to trigger the investigative duty. It is quite clear that when referring to the "possibility" of a violation the Courts are by no means saying that there is (or needs to be) any evidence of a violation. The courts in these cases are not linking the duty to investigate (and provide the derivative right of representation) with the existence of arguable evidence of breach. On the contrary it is the mere fact of death in circumstances where there is a hint of state control which creates the hypothetical "possibility" of violation and it is this "possibility" triggered by the fact of death which then activates the investigative duty. In such cases (as the examination of objects and purposes in section F. above shows) there still can exist very good and powerful policy reasons for the inquiry to be held, including so that the finger of doubt can be dispelled and the State can emerge unblemished, which of course is the very opposite of a case where the purpose of the inquest is to find the state culpable.

The Judge then considered the psychiatry cases and concluded that the procedural duty might be so triggered "irrespective of whether the state, whether arguably or otherwise, is in breach of the substantive duties in Article 2 ECHR" ([92]), but that the limits of the principle are "hard to define".

Accordingly the court found that the guidance, insofar as it it failed to identify the category of cases at (ii) above, contained an error of law ([94]).

Having considered the guidance and whether or not the court should interfere with it, the court granted declaratory relief, having said ([118]):

•               The test is hence: Would the Guidance if followed (i) lead to unlawful acts (ii) permit unlawful acts or (iii) encourage such unlawful acts? In my view for the reasons already given the Guidance would do all of these three things.

Further submissions are to be heard on the nature of the declaratory relief.

Analysis
The effect of this judgement should not be overstated; though it is perhaps a useful analysis of some of the cases on the procedural duty:

• It establishes only that there are 'cases' in which the procedural obligation may arise 'automatically'; no further conclusions are drawn about the scope of that principle;

• The court was not required to consider whether the refusal to grant legal aid was in this case lawful; 

• The case concerned a detained psychiatric patient: "The position in relation to different categories of case... is also fact sensitive and on the state of the present law complex.... Even in relation to mental health suicides the outer limits of the automatic duty are not crystal clear" ([99]).

Therefore the effect of this case is wholly in relation to the guidance and its failure to acknowledge that there are cases which 'automatically' trigger the investigative duty.

It remains to be seen what declaration will be given, but it seems that the guidance will have to be wider so as to incorporate the 'automatic' cases.

However, in due course some families may find it easier to obtain legal aid in cases where it is difficult to establish (evidentially) an arguable breach, in particular in deaths of detained psychiatric patients. Importantly the applicant will still need to show that representation is 'necessary'.

Conclusion
This case is an interesting development in the procedural obligation under A2 and is also a step toward increasing much-needed representation for families at inquests. A further post will analyse the effect of the declaration when the judgement is available.

Reaney V North Staffordshire NHS Trust

Reaney V North Staffordshire NHS Trust:

Does This Represent A Change In The Law?

By Killian Garvey, Kings Chambers Pupil

It is trite law that a defendant may only be liable to compensate a claimant for the damage it has caused him or to which it has materially contributed. Moreover, it is well established that a defendant must take its victim as it finds him (which may be to its advantage or disadvantage). This latter principle, known as the ‘egg-shell skull rule’, derives from Mackinnon LJ’s speech in the case of Owens v Liverpool Corp [1939] 1 KB 394, whereby he said:

One who is guilty of negligence to another must put up with idiosyncrasies of his victim that increase the likelihood or extent of damage to him: it is no answer to a claim for a fractured skull that its owner had an unusually fragile one

Applying these principles to a hypothetical scenario, one can see how they can potentially serve to limit a defendant’s liability. So, for example, consider the situation whereby a claimant requires 3 full-time carers. If they were a healthy, independent individual prior to the defendant’s negligent act, then they can now claim for paying these 3 carers. However, if the claimant had a pre-existing disability from a non-negligent act, whereby they already had 2 full-time carers that were provided for by their local authority, their claim would be limited to the one additional carer they now require.

This approach has been followed for decades. However, some seem to think that this is no longer the case, in light of the recent decision in the case of Reaney v University Hospital of North Staffordshire NHS Trust [2014] EWHC 3016. Some now seek to rely on Reaney in support of the view that the claimant, in the hypothetical scenario posed before, can now claim for the 3 carers, irrespective of their previous care needs. I suggest that this is wrong and based on a misunderstanding of Foskett J’s judgment in this case. 

Mrs Reaney had a very serious spinal injury that preceded the Defendant’s negligence. This injury essentially put her in the same position as a T7 paraplegic. The Defendant admitted that they were responsible for a deep (grade 4) pressure sore, which exacerbated Mrs Reaney’s pre-existing disability. Prior to the Defendant’s negligence, Mrs Reaney received gratuitous care from her husband and 7 hours of professional care a week from the local authority. After the negligence, Foskett J held that Mrs Reaney now needed 2 carers offering 24-hour care, 7 days a week.

The Defendant contended that due to Mrs Reaney’s pre-existing disability, the extent of her additional care needs should be limited. Thus, it was submitted, on behalf of the Defendant, that were they held to be liable for the full extent of Mrs Reaney’s care needs, they would be compensating her not only for the pressure sores, but also for her underlying paraplegia. Instead, their liability should be confined to only ‘topping-up’ the care she would have otherwise needed but for the negligence. The Defendant asserted, therefore, that the correct approach to the assessment of Mrs Reaney’s care needs was to assess the Claimant’s care needs globally, give credit for the care that was being provided already, take account of the care that she needed pre-negligence but was not receiving and therefore limit the additional care to that which arose from the pressure sores.

However, Foskett J preferred the position advanced by the Claimant’s representatives, which was simply to consider factually what care the Claimant was receiving pre-negligence and then to consider what she needed now. Indeed, at paragraph 68 of the judgment (subsection ii and iii), Foskett J stated:

(ii)  Although the Claimant needed two carers on a 24/7 basis, she did not receive

      such care because she could not afford it and the local authority was only able to

      provide the levels of assistance described above …

(iii) As already indicated, the Claimant’s future care requirements for the rest of her

     life fall to be assessed on the basis that she requires 24/7 care from two carers ...

So, returning to the title question: does this represent a change in the law? It is submitted that it does not. It follows from the age-old approach in tort of putting the claimant back into the position they would otherwise have been in.

Arguably, the most interesting point arising from this decision is that even if the Claimant had pre-existing care needs, if they were not being met, then they cannot be deducted from the calculation. So, returning to the hypothetical scenario posed before. If the Claimant had 2 full-time carers pre-negligence and now needs 3 carers, their claim would be limited to this additional carer. However, if the Claimant needed 2 full-time carers pre-negligence but was not receiving any care, then arguably Reaney suggests that they can still claim for the 3 carers.

The views expressed by the writer are not necessarily those of Kings Chambers.

Border v Lewisham

Border v Lewisham confirms the importance of consent and what issues can be raised at appeal

By Richard Borrett

In the recent Court of Appeal case of Border v Lewisham the Claimant had suffered an injury as a result of a cannula being inserted into her arm, despite the Claimant telling the doctor that she had recently had a left mammectomy and axillary node clearance, and that inserting a cannula into her left arm carried the risk of oedema.

The trial judge had found that the doctor had made a quick and silent decision that the left arm was the only viable site for the insertion of the cannula and did so without communicating this to the patient. The Judge had found that this was in accordance with recognised practice and was not negligent. 

The Claimant appealed on the basis that the lack of consent meant the treatment was negligent. The Defendant argued that the Claimant had 'impliedly consented'. 

The Court of appeal held ([24]):
"The duty to obtain the patient's consent to treatment is a fundamental tenet of medical practice and is inherent in the case-law concerning the duty to take reasonable steps to warn a patient of the risks of treatment so that the patient can make an informed decision about whether to consent to it (see, for example, Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134)."

This is certainly not a ground-breaking case, but it does reinforce the importance of consent, even where a course of treatment may be in accordance with recognised practice.

Additionally the case raised an important procedural point. The issue of consent was not seen by the Claimant's counsel as an important part of the case. It was not in his skeleton, and the Judge obtained apparent indications during the trial that consent was 'not the issue'. The CA said that "Thus the judge was right to consider that neither party was attaching importance to the issue at the trial" (22).

However the CA said ([24]):
"It seems to me to be open to the claimant to contend on the appeal that the finding that the procedure was carried out without the claimant's consent should have led the judge to find a breach of duty on the part of Dr Prenter even though that was not the way the claimant's case was being advanced at trial". 

This conclusion was based on the fact that the issue had been pleaded, where the allegations of negligence included "Failing to heed the warning given by the Claimant that she should not have any injections into her left arm …" and "Proceeding to place an intravenous cannula into the Claimant's left arm when the Claimant objected to this" ([23]).

This may be a useful decision therefore in cases where there are a wide range of allegations of negligence, and an appeal is sought on an issue which, though pleaded, was not perhaps the 'thrust' of the case at trial.

When Is A Claimant Atypical?

By Killian Garvey, Kings Chambers Pupil

For the purposes of determining life expectancy, when is a claimant atypical?

The usual order of things, when assessing quantum, is to determine a claimant’s life expectancy by reference to the Ogden Tables. Indeed, use of the those tables was endorsed by the House of Lords in Wells v Wells, where Lord Lloyd of Berwick stated that, ‘the tables should now be regarded as the starting-point, rather than a check’.

Tables 1 and 2 provide ‘Multipliers for pecuniary loss for life’ for males and females. These multipliers are based on the projected mortality rates of the United Kingdom as a whole. However, they do not account for all claimants. Indeed, as paragraph 5 of the Explanatory Notes to the Ogden Tables states, these multipliers can be modified ‘where there is clear medical evidence in an individual case to support the view that the individual is atypical, and will enjoy longer or shorter expectation of life.’

In theory this seems logical. In practice, however, this leaves lawyers in the difficult position of trying to determine when an individual is atypical. Of course they will not be alone in this; the lawyer will likely have medical evidence either supporting or refuting this proposition. But at what point should a lawyer instruct a medical expert to assess this? And what threshold is a medical expert meant to apply to this claimant?

Consider, for instance, a claimant with a body mass index of 40. Clearly this person would be classed as being clinically obese. But are they atypical? Do the Ogden Tables apply to them?

You may notice that this article has thus far posed a number of rhetorical questions, whilst not providing any answers. Unfortunately this is indicative of the law on this issue. These questions have not been properly addressed in any reported decisions at present, which leaves the lawyers faced with these questions guessing as to the answer.

So at the risk of posing yet another question: where should the threshold be set for determining when a claimant is atypical?

The writer’s view is that the courts should adopt a conservative approach to this question, by setting the threshold relatively high. The reasons for this are threefold:

-          The Ogden Tables are generated by reference to the UK’s average population. Thus, this includes, on the one hand, smokers, drinkers and obese people, all of whom might have reduced life expectancies, and on the other hand, health-obsessed yoga-practicing vegans, who may have increased life expectancies. The Ogden Tables, therefore, account for most people, meaning that they should only be deviated from in exceptional circumstances. Doing otherwise would render them obsolete.

-          If the threshold for claimants being atypical was set relatively low, then it would become commonplace for lawyers to instruct medical experts on life expectancy. Not only would this exponentially increase the cost of litigation, it would also arguably lead to unnecessary satellite litigation concerning the admissibility of life expectancy evidence.

-          Legal certainty is an underlying principle in all litigation. Adding another variable as to what multiplier should be applied would only serve to undermine this in personal injury litigation.

So, if the threshold for claimants being atypical should be set high, then how high? And how should this expressed?

It would seem that the difficulty one faces with answering these questions is that however this threshold test is expressed, it will need to remain relatively vague. The courts cannot realistically stipulate specific guidance in answer to these questions. For example, take the claimant considered above with a BMI of over 40. Is it reasonable to deviate from the Ogden Tables with this claimant simply because of their BMI? What if they were a fit rugby player with a family history of relatives who live to well over 100? Presumably not in those circumstances.

The alternative is to only allow deviation from the Ogden Tables where the medical evidence indicates that the claimant’s reduction in life exceeds a certain period (eg. 8 years). Arguably though, this would only lead to a plethora of experts being asked to state that the claimant’s life expectancy is over 8 years below (or above) average.

It is submitted, therefore, that this issue must be determined on a case-by-case basis. Beyond stating that the threshold for deviating from the Ogden Tables should be set relatively high, ultimately it is heavily reliant upon the discretion of the judge trying the action. And inevitably this judge will end up applying the test referred to by Stuart-Smith LJ in Cadogan Estates Ltd v Morris:

‘This seems to me to be an application of the well know elephant test. It is difficult to describe, but you know it when you see it’.

Hockley: The High Court on Denton, set aside, and telephone hearings

By Richard Borrett 

The case of Hockley v North Lincolnshire and Goole NHS Foundation Trust (available on Lawtel) primarily concerned an application for set aside of default judgement where the Defendant trust had filed its acknowledgement of service 13 days late.

Much of the judgement is fact sensitive, but there is some useful guidance on the application of all of the Denton stages and criteria, which is worth reading in full.

Additionally HHJ Richardson QC gave clear indications on a number of issues which are worth setting out briefly:

1. The relevance of rule 3.10 to set aside applications:

[34] – The relevant considerations to be applied in respect of both of these provisions are similar, albeit couched in different language… the difference in language is purely semantic and not of importance. The jurisprudence underpinning both rules is the same. I cannot envisage a case where relief form sanction would be permitted but there are no good reasons for setting aside the judgment. The reverse is also true: how could it be said there are good reasons for setting aside the judgment but they would not meet the criteria for relief from sanction.

HHJ Richardson QC also said, (at [42]) that the three stage approach in Denton had ‘considerable relevance’ to an application to set aside a default judgment when considering the good reason ground in CPR part 13.3(1)(b)

These findings go some way to resolving the somewhat unclear position left by the simultaneous judgements in Chartwell and Paul Dean Davies (see my previous blog on Denton here)

      2. Application of the Denton Guidance:

At [57] the Judge noted that “…the acknowledgement of service is not a trivial or unimportant step in litigation… the consequence of a failure to comply with the requirement to file it on time has the potential of a default judgement. That adverse consequence [default judgement] reveals the importance of this step in litigation. If it was of relative unimportance, the sanction for non-compliance would hardly be a default judgement.”

This is an interesting analysis and is likely to provide scope for argument (both for defaulting parties and respondents) in relief applications.

It could easily be argued the sanction in r32.10 is a serious sanction (restricting the evidence a party could call) and indicates therefore that late service is necessarily a ‘serious or significant’ breach.

3. Appropriate use of telephone hearings.

At [86] – [87] the Judge gave his views on the use of telephone hearings.

HHJ Richardson QC was in “no doubt that the determination of this difficult decision should not have been undertaken by way of telephone hearing. Such hearings are amenable to short decision making cases and matters which are truly procedural rather than requiring a fully reasoned exercise of a judgement”.

Those conducting them regularly will be aware of how accurate HHJ Richardson’s views on telephone hearings are. Though very useful, they are often not conducive to the type of consideration and argument which is required. These comments will be of use to those seeking to avoid them in cases where they are inappropriate.

Medical Treatment Decision

In An NHS Trust v Mrs J (by her litigation friend, the Official Solicitor) [2014] EWCOP 2675 Mr Justice Bodey dealt with a case concerning an elderly woman who had been diagnosed with cancer and required further investigation and treatment but also lacked capacity to consent to the same. Despite numerous attempts to secure her cooperation she refused, insisting that she did not need treatment. Her family supported her decision and considered that she could recover capacity with the right treatment for her underlying mental disorder. The Trust was concerned not to lose the opportunity to provide potentially curative treatment and referred the matter to the Court of Protection seeking declarations in relation to capacity and authority to carry out treatment. Despite there being a number of contraindications against compelling Mrs J to undergo the proposed treatment, Bodey J came to the conclusion that it would be in her best interests and granted authority to use restraint to convey her to hospital and to enable the treatment to be provided.

The Trust was represented by Adam Fullwood of Kings Chambers instructed by DAC Beachcroft.

Approved judgment:

http://www.bailii.org/ew/cases/EWCOP/2014/2675.html

Denton, Decadent and Utilise: Restating Mitchell?

By Richard Borrett

Introduction

The background to the 4/7/2014 court of appeal decision (available here http://www.judiciary.gov.uk/judgments/denton-v-th-white-ltd-de-laval-ltd-decadent-vapours-ltd-v-bevan-salter-celtic-vapours-ltd-utilise-tds-ltd-v-davies-bolton-community-college-corp-watertrain-ltd/) needs no introduction to those engaged in civil litigation in recent months. Suffice it to say that the Mitchell decision has caused considerable confusion and contradiction as to the correct approach to applications under CPR 3.9.

What follows is a brief analysis of the judgment and where it leaves the issue of relief from sanctions.

Mitchell & the cases which follow

Interestingly and helpfully the Court of Appeal lists ([13] – [20]) those cases which are, in its view, the ‘most important’ cases decided since Mitchell:

Adlington http://www.bailii.org/ew/cases/EWHC/QB/2013/B29.html,

Durrant http://www.bailii.org/ew/cases/EWCA/Civ/2013/1624.html,

Newland Shipping http://www.bailii.org/ew/cases/EWHC/Comm/2014/210.html,

Lakatamia http://www.bailii.org/ew/cases/EWHC/Comm/2014/275.html,

Summit Navigation http://www.bailii.org/ew/cases/EWHC/Comm/2014/398.html,

Chartwell Estate Agents http://www.bailii.org/ew/cases/EWCA/Civ/2014/506.html.

Given that the court of appeal (in its view at least) is merely ‘restating’ the decision in Mitchell, those cases are still in theory relevant to applications for relief.

Having considered those the court said that “The guidance given at paragraphs 40 and 41 of Mitchell remains substantially sound. However in view of the way it has been interpreted, we propose to restate the approach that should be applied in a little more detail.” Whether what follows is really a restatement is a matter for debate.

The Three-Stage Guidance  

The court sets out (at [24]) a three stage process for the assessment of applications under CPR r3.9:

The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.

Further detail is given on the application of each stage of the test.

Stage 1

The judgment goes some way to assisting with the meaning of ‘triviality’ which caused considerable inconsistency in decision-making.

The court says (at [26]) that “it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant”.

It goes on to consider the test of ‘materiality’ proposed by the Bar Council and Law Society (who intervened in the appeal):

It was submitted on behalf of the Law Society and Bar Council that the test of triviality should be replaced by the test of immateriality and that an immaterial breach should be defined as one which “neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation”. Provided that this is understood as including the effect on litigation generally (and not only on the litigation in which the application is made), there are many circumstances in which materiality in this sense will be the most useful measure of whether a breach has been serious or significant. But it leaves out of account those breaches which are incapable of affecting the efficient progress of the litigation, although they are serious…

We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance.

Therefore the new question is whether a breach is serious or significant. Whether a breach disrupts the conduct of litigation will in many cases (but not always) answer that question but there are breaches which do not so disrupt, but which could still be serious.

Finally, the court reiterated that where a breach is not ‘serious or significant’ (or trivial as was), then relief will usually be granted ([28]).

The Second Stage

The second stage is, simply, to consider what (if any) the reason for the breach is. Considering why the default occurred will be important at the third stage.

The Third Stage

The court quite accurately recognised that the main difficulty which has arisen has been the ‘paramount importance’ given to factors (a) and (b) in rule 3.9.

Importantly the court appeared to row back from this a little and said (at [32]) that those two factors

“may not be of paramount importance, [but] we reassert that they are of particular importance and should be given particular weight at the third stage when all the circumstances of the case are considered”.

In considering applications, the correct approach is that the court should ([35]):

…give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it. Where there is a good reason for a serious or significant breach, relief is likely to be granted. Where the breach is not serious or significant, relief is also likely to be granted.

The court noted the following which in the authors view is one of the most important passages in the judgment ([38], emphasis added):

…some judges are approaching applications for relief on the basis that, unless a default can be characterised as trivial or there is a good reason for it, they are bound to refuse relief. This is leading to decisions which are manifestly unjust and disproportionate. It is not the correct approach and is not mandated by what the court said in Mitchell: see in particular para 37. A more nuanced approach is required as we have explained. But the two factors stated in the rule must always be given particular weight. Anything less will inevitably lead to the court slipping back to the old culture of non-compliance which the Jackson reforms were designed to eliminate.

Non-Co-operation

Equally important as the three-stage test, the court went out of its way to criticise the ‘non-cooperation’ between lawyers since Mitchell. The most important passages are these:

[41] …it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation. The parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new rule 3.8(4).

[42] It should be very much the exceptional case where a contested application for relief from sanctions is necessary.

[43] The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective […] It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can, in an appropriate case, also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case

That is as strong an indication as could be given by the Court of Appeal as to the behaviour which is expected of parties and the consequences of unreasonableness

Conclusions

The three stage guidance set out gives further assistance in the making of r3.9 applications. It should diminish the weight currently being given to factors (a) and (b), and give greater weight to the rest of r1.1.

There is, however, no return to pre-Mitchell days and there is no room for laxity.

Equally importantly, respondents (to applications under r3.9) will now have to think very carefully before opposing any application for relief or for an extension of time (including under the newly amended rule 3.8).

Problems

A number of issues remain following this decision.

The effect of rule 32.10

The Court of Appeal in Chartwell indicated that, any application to rely upon a late witness statement was in effect an application under rule 3.9: the sanction had ‘bitten’.

However no argument was in fact heard on that point and the indication (however strong, and even though from the Court of Appeal) is obiter.

In another case decided on the same day as Chartwell, Paul Dean Davies (http://www.bailii.org/ew/cases/EWHC/Admin/2014/2034.html), the High Court decided the exact opposite.  

This post is not the place for a full analysis of the issue, but it is one which remains unhappily unresolved, and on which there are now directly contradictory decisions from the courts.

Serious breaches not affecting hearing dates

Though the issue of ‘triviality’ is somewhat clearer following Denton, there will remain cases which do not imperil hearing dates or affect the conduct of litigation, but which, in the court’s view, are serious.

Assessing which of those breaches (like paying court fees on time) are serious may present some difficulty. The important points are (i) that the starting point should be the effect on the conduct of litigation generally, and (ii) that ‘seriousness’ is not the end of the matter, and though a failure may be sufficiently serious to pass through stage 1, it has to then be considered in ‘all of the circumstances’ at stage three.