In Kidnapped R L Stevenson so recounts the shocking death of the cabin boy Ransome at the hands of the first officer Shuan. The murder of the cabin boy likely put an end to any problem with dirty cups on the ship. Certainly Mr Shuan’s action will have sent out a clear signal that dirty pannikins would be dealt with robustly...
No doubt David, appointed cabin boy in Ransome’s place, was assiduous in his pannikin-cleaning duties. History does not relate whether there was a widespread problem with dirty utensils on the ship. And yet, one is left with the nagging feeling that the first officer’s actions were somehow disproportionate to the offence. That an indirect economic (distributive) benefit was a ratably increased daily crew ration does not weigh much. Unkind treatment Andrew Mitchell MP’s two interlocutory appeals Andrew Mitchell MP v News Group Newspapers Limited  EWCA Civ 1526 (27 November 2013) following ‘plebgate’ has generated amongst litigation lawyers the “kind of frightened look” described by Stevenson. Not murdered cabin boys but the prospect of irrecoverable costs and negligence claims. The occasion is a drastic revision of CPR 3.9, the application of which has startling, and some would say unjust, results.
All analogies tend to break down. Mr Andrew Mitchell MP is plainly not a cabin boy nor like one. He has not been murdered. The Court of Appeal is not a murderous ship’s first officer. But Mitchell perhaps may feel unkindly treated by authority. No comfort to him that his treatment is an ensign of a new conception of justice and his opportunities for litigation may have multiplied. Some may not have much sympathy. He does not belong to the class of persons Victorians characterized as the ‘deserving poor’. Perhaps justice should be partially sighted rather than blind – maybe one eye is to be dimly focused on a Rawlsian conception of distributive justice?
Giving pause for thought
For lawyers, the Court of Appeal’s judgment gives pause for thought for several reasons.
- First, the not self-evident empirical proposition and premise behind the whole judgment taken from Sir Rupert Jackson’s Final Report under Ch 39 referring to the important amendment to CPR 3.9:
“……… 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.”
That proposition, in an important judgment of this kind, explicitly intended to effect a change in ‘culture’, might identify the evidence that supported it. On one view, the judgment proceeds upon a premise assumed, crucially, rather than demonstrated. Further, there is an imbalance between draconian penalties imposed upon parties for failing to comply with sanction-backed rules and the absence of any corresponding requirement for discipline and expedition by the courts at whose hands parties often suffer harmful delays without recourse. There is a real danger that a perception that the legal profession is engaged with the court in a collaborative exercise in doing justice will be eroded. This is apt to occur where what is seen to be fair is decoupled from the (new) concept of justice (below). The importance of a litigant coming away from the trial process believing that they have been given a fair hearing is difficult to overstate. A fair hearing includes by a process seen to be fair. Substituting a cause of action in negligence for a right to costs may not promote that perception. Most litigants wish to exit the court process rather than to engage it more.
- Second, there is a lengthy quotation in the Master of the Rolls’ judgment from the 18th lecture on the implementation of the Jackson reforms, given by Lord Neuberger, that includes:
“The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that justice means something different now” (emphasis supplied).
Ultimately, the broader meaning of ‘justice’ is a political, rather than narrowly legal, issue. Some, like Orwell, would contend that the stability of the meaning of core value words such as ‘justice’ is an important, indeed vital, good and end in itself. It is not wholly clear on what basis the content of justice has been devolved, nor upon whom. Not, one would think, the Rules Committee. When and by whom next changed? The importance of this change is difficult to overstate. In Purdy v Cambran  CP Rep 67, of the new procedural code that the CPR represented, May LJ had said : “it is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective”. In contrast, for the future extrinsic considerations are to be given effect.
- Accordingly, third, referring to Mr Justice Andrew Smith’s comments in Raayan Al Iraq Co Ltd v Trans Victory Marine Inc  EWHC 2696 (Comm) on the revision to CPR 3.9: “Nor do I accept that the change in the Rule or a change in the attitude or approach of the courts to applications of this kind means that relief from sanctions will be refused even where injustice would result” (emphasis supplied), the Master of the Rolls said:
“It seems to us that, in making this observation, the judge was focusing exclusively on doing justice between the parties in the individual case and not applying the new approach which seeks to have regard to a wide range of interests.”
An instrumental conception of justice
Some, very possibly including some judges, may find the foregoing criticism disturbing; it seems to contemplate injustice (per Andrew Smith J) between the parties a result from giving effect to a broader class of competing interests. The precise identity of those wider interests and how they are going to be represented and given effect is not clear – other than by what might be seen as a mechanistic application of the revised rules. It seems that judicial discretion to do justice between the parties in the individual case itself is cut down. That this is effected by attributing a new meaning to “doing justice” is troubling. A new instrumental meaning is necessary to enable the new strict application of CPR 3.9 to be accommodated by the requirements of CPR 1. This is a perceived requirement for robustness driving the meaning of justice. Arguably, that is the wrong way round. It is not self-evident that stripping judges of their discretion to do what they consider to be just in the individual case will confer deliverable (or meaningful) benefits on the wider interests to which that discretion is to be subordinated. The Court of Appeal gave its approval to the re-modelled CPR 3.9: “[t]he merit of the rule is that it sets out a stark and simple default sanction.”
The judgment concludes:
“….. Although it seems harsh in the individual case of Mr Mitchell’s claim, if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback. In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past.”
The expression ‘harsh’ impliedly recognises that, for those who may remain yet to be persuaded, giving effect to the new conception of justice may not sit easily with an existing perception of fairness. It’s worth remembering the dirty pannikin in this case; the Master on 18 June 2013 decided that, because Mitchell’s solicitors had failed to file his costs budget in time (under a now discontinued pilot rule) only filing on the afternoon of 17 June, he was to be treated under the rules as having filed a costs budget comprising only the applicable court fees. The actual costs budget filed was £506,425. Newgroup’s costs budget (also filed late) was £589,558. That is to say, the penalty for not filing a costs budget no less than 7 days before a hearing was some £500,000 (or £1,000,000 if a 100% uplift under the CFA). It was of course a windfall to News Group. It was a windfall in more ways than one. If Mitchell has made a claimant’s Part 36 offer, News Group avoids any narrow calculus of quantum, intended by Part 36 to facilitate the commercial, and, importantly, extra-judicial settlements of litigation, and any such offer can happily be torn-up. A strict application of one rule may subvert the purpose and utility of another. In any event the consequence appears to bear no relationship at all to the default and appears disproportionate.
Weighing up the merits of this judgment
As to the avoidance of satellite litigation, while a self-evidently desirable objective, it is hard to predict with confidence that the administration of the new conception of justice will have that
effect. One consideration of importance, strikingly absent from the Court of Appeal’s reasoning, is the fact that litigation solicitors have hitherto typically adopted a sensible and cost-saving day-to-day attitude of give and take on procedural steps and timelines. Now that the stakes have been raised to such unprecedented levels, not only has the obvious common sense in adopting a co-operative posture been removed, necessarily it is in the client’s interests, and is thus a solicitor’s duty, to take what previously would have been viewed as ‘technical’ procedural points, especially where these offer the prospect of delivering a knock-out on the issue of costs or any other sanction. This is already to be seen. Promoting the salience of one good, viz rule compliance, over others, such as what seems fair and reasonable between the parties, might yet produce unexpected effects. That is a common by-product of novel policies.
As to the merit of a rule consisting in its having a “stark and simple default sanction”, that might appear to discount the requirement for fairness, perhaps a desirable feature of rules concerned with the administration of justice, in favour of simplicity. Not only may this command less than universal support, it may, like the United Kingdom’s military engagement in Afghanistan, exhibit historical amnesia. At the time of the introduction of the CPR around half of the cases waiting to be heard in the Court of Appeal consisted in appeals concerning the operation of County Court Order 17 r. 11. That was an automatic rule strictu sensu. It was well known, indeed notorious. Of it Lord Woolf in Biguzzi v Rank Leisure plc  1 WLR 1926 said: “[t]he problem with the position prior to the introduction of the CPR, was that often courts had to take draconian steps, such as striking out proceedings, in order to stop a general culture of failing to prosecute proceedings expeditiously. The prime example of that was contained in Order 17 rule 11(9) which involved the automatic striking out of cases where the appropriate step of seeking a hearing date was not taken by the strike out date. That led to litigation which was fought furiously on both sides; on behalf of claimants to preserve their claim, and on behalf of defendants to bring the litigation to an end irrespective of the justice of the case because of a failure to comply with the rules of the court”.
In contrast, the then Master of the Rolls said: “The advantage of the CPR over the previous rules is that the court’s powers [to manage cases without recourse to striking out] are much broader than they were….”.
All change. It is not self-evident that a semi-automatic rule, where the consequence of breach (save in rare instances) is likely to be widely viewed as draconian and disproportionate, with a cut-down judicial discretion to do justice in the individual case of the kind exercised by Andrew Smith J, will not result in an effect opposite to that intended. Certainly, conducting litigation will become a high, and in any event higher, risk business. Civil procedure becomes a sort of procedural game of pinball with judges reduced merely to the role of referees. Whether a case is ultimately decided on the actual merits will depend on how you do in the game. It will therefore cost more in insurance premiums. That will advantage firms with substantial resources and disadvantage (particularly) small firms who operate on tight margins. Overwork is no excuse. It will be good if there is an assistant solicitor who can be deployed to keep abreast of the constantly changing cat’s cradle of rule compliance – especially rules with sanctions, maybe another to deal with cost budgeting. One outcome possible is that the increased costs of civil litigation will make it more unaffordable than even now, thereby reducing access to justice – including for those intended to be comprehended within the new conception. Litigants in person will further increase resulting in longer hearings. John Rawls would not have approved. His core concept was the greatest opportunity for the most disadvantaged.
To liberal sentiment, the most disturbing aspects of the Court of Appeal’s judgment are: first the startling, slightly Orwellian, proposition that “justice means something different now” and,
second, the explicit objective to bring about a change in culture by that change in meaning – even though this may be harsh in the individual case (instrumentalism). This is the language of revolution that Edmund Burke would have winced at. Admiral Byng was executed for failing to relieve Minorca, contrary to the then 12th Article of War: “Every person in the fleet, who through cowardice, negligence or disaffection... shall not do his utmost to take or destroy every ship which it shall be his duty to engage; every such person so offending, and being convicted thereof by the sentence of a court martial, shall suffer death.” A rule indisputably robust and simple, no discretion. Voltaire sardonically commented that occasionally it appeared necessary to shoot an admiral pour encourager les autres. The Royal Navy served with distinction thereafter – but causation is not established. The execution of admirals by firing squad is no longer fashionable and goes a bit against the grain, like the burning of bishops, salutary though their effects might be. The Roman military practice of decimation of troops failing to show mettle in the face of the enemy, also no doubt salutary and incontestably robust, lost favour under the Empire because it enjoyed little support in the army. We no longer have debtors’ jails.
It is important that civil procedure is seen to be fair. What is seen to be fair may not be changed, perhaps, as readily as the meaning we are told is now to be ascribed to “justice”. Of course it may be that CPR 3.9, in its revised form, leaving an amputated stump of judicial discretion to do justice between the parties, is simply a bad rule. Bad rules have bad consequences as was discovered with CCR Order 17 r 11.
It remains to be seen how Mitchell is to be squared with Abercrombie v Aga Rangemaster Ltd  EWCA Civ 1148. Underhill LJ approved (the Chancellor and Kitchin LJ concurring) Bowen LJ’s statement in Smith v Cropper (1885) 26 ChD 700, 711: “it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise in accordance with their rights….. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy….”.
Paul Marshall No 5 Chambers