To do justice in this broader sense cases must be conducted at proportionate cost and parties must comply with civil procedure, factors enshrined in the amended overriding objective. It is this broader definition of justice that underpins the Court of Appeal seminal decision in Mitchell v News Group Newspapers Limited  EWCA Civ 1537,  All ER (D) 314 (Nov).
This definition of justice is not an alien concept, it was, at least initially, a fundamental part of the Woolf Reforms. We can all remember judges making robust case management decisions when the CPR was first implemented but over time, when exercising its discretion where there had been non-compliance with rules or orders, courts reverted back to considering the lack of prejudice to the non-defaulting party as the touchstone of its decision making. After Mitchell , there is no doubt that such a lack of prejudice, long relied upon by defaulting litigators, will carry little, if any, weight.
Shift in emphasis
This “deliberate shift in emphasis” back to the need for compliance is reflected in the redrafted CPR 3.9. That rule sets out the court’s general discretion to give relief against any sanction imposed for failure to comply with any rule, practice direction or court order. As redrafted the rule compels courts to consider all the circumstances of the case so as to enable it to deal justly with the application, including:
1.for litigation to be conducted efficiently and at proportionate cost; and
2.to enforce compliance with rules, practice directions and court orders
Giving guidance on how CPR 3.9 is to be implemented, Lord Dyson acknowledged that the rule requires the court to consider “all the circumstances of the case, so as to enable it to deal justly with the application”. The need to do justice specifically requires the court to remind itself of the overriding objective and in doing so, although wider factors relating to the application for relief should be taken into account, the need to conduct litigation efficiently and in compliance with procedural rules and orders should be given far greater weight, these two factors being of “paramount importance”.
Lord Dyson then went on to give specific examples of when a court should grant relief from sanction in the future. It will usually be appropriate to start with the nature of the non-compliance. If it can be regarded as trivial relief will usually be granted if the application has been made promptly. Trivial is suggested to be no more than an insignificant failure to comply with an order, for example (a) where there has been a failure of form rather than substance; or (b) where the party narrowly missed the deadline imposed by the order but otherwise fully complied with its terms.
Good reason to grant relief?
Where non-compliance is more than trivial however, the burden is on the defaulting party to persuade the court that there is “good reason” to grant relief. Good reason could be where a solicitor suffers a debilitating illness or was involved in an accident but would not include the mere overlooking of a deadline due to pressure of work. Slightly more benevolently, if later developments in the course of the litigation mean that the original period for compliance was unreasonable, although the period seemed to be reasonable at the time it was ordered, this could amount to good reason. In short, good reason is likely only to arise from circumstances outside the control of the party in default.
Ensure a realistic timetable
There can be no doubt that by imposing such a high threshold for the granting of relief from sanction that very few applications under CPR 3.9 are likely to succeed. It is therefore essential that litigators ensure a realistic timetable is initially set down and that breaching rules that impose sanctions are avoided or, if appropriate, an early application for an extension of time is made before the rule is breached. Further, court imposed sanctions, such as unless orders, must be avoided. If imposed, consideration should be given to appealing that order because once an application for relief from sanction is necessary it presupposes that the sanction has in principle been properly imposed.
Despite its redrafting, it remains the position that CPR 3.9 does not come into play where a party has failed to comply with any rule, but specifically where a sanction is imposed as a result of that failure. If no sanction is imposed CPR 3.9 has no application. However, Lord Dyson’s guidance is likely to have far greater resonance so expect the broader definition of justice to provide the foundation of a more robust attitude to compliance generally. Evidently, such an approach will not necessarily mean justice for an individual party, like Mr Mitchell, but it is justice for all litigants in the broader sense that allows the judiciary to rationalise News Groups’ unmeritorious windfall.
Jeremy Ford, barrister, 9 Gough Square (www.9goughsquare.co.uk)