Utilise Tds Ltd v Davies & Ors

JUDGE HODGE QC: This is my judgment in the case of Utilise TDS Limited (as claimant) and Neil Cranstoun Davies and two others (as defendants) - claim number 3MA30330 and appeal reference M14C014. This is an application by the claimant for permission to appeal from an order of District Judge Matharu dated 2^nd January 2014 refusing to grant relief against the sanctions imposed by an earlier order, also made by that District Judge, on 11^th November 2013 (and perfected on 18^th November 2013). The appeal raises what I am told is a novel point of law arising out of the decision of the Court of Appeal in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 reported at [2013] 6 Costs Law Reports 1008 [and now at [2014] 1 WLR 795] ,to which I shall simply refer as Mitchell. The novel point is this: if the breach of a court order attracting sanctions, considered in isolation, can be viewed as trivial, can another trivial breach of the same order result in the first breach being viewed as a non-trivial one?

I can take the background from the second defendant’s written skeleton argument. By a claim form issued in the Manchester District Registry of the Chancery Division on 11^th June 2013 the claimant seeks declaratory and other consequential relief in relation to the shares in the third defendant company, Watertrain Limited. The first and second defendants, who are separately represented in the litigation, deny the claimant’s entitlement to the relief sought. No relief is sought by the claimant against the third defendant, which is playing no active part in the proceedings.

A notice of proposed allocation to the multi-track in form 149C was sent out to the parties on or about 9^th August 2013. The notice stated that the claim was now a defended claim and it appeared that the case was suitable for allocation to the multi-track. Paragraph 3 of the order required the parties, by 9^th September 2013, to complete the directions questionnaire in form N181 and to file it with the court office at the Manchester District Registry, the address of which was then given, and to serve copies on all other parties. Paragraph 3(b) required the parties to attempt to agree directions with all other parties; and paragraph 3(c) required the parties to file proposed directions in accordance with CPR 29.1(2) (whether or not agreed) with the directions questionnaire. The notice, which I understand is in the form originally published by the Court Service, made no reference to costs budgets or to the filing of the applicable form H. The parties filed their respective directions questionnaires in time. None of the parties filed a form H with their respective directions questionnaires.

On 2^nd October 2013 the file was apparently placed before District Judge Matharu who made the following order (correcting an obvious typing error). By paragraph 1 the claim was stayed until 8^th November 2013 during which period the parties were required to attempt to settle the matter or narrow the issues. Paragraph 2 provided that by 4 pm on 15^th November 2013 (which was a Friday) the claimant was to notify the court in writing of the outcome of negotiations (without disclosing any matters which remained subject to ‘without prejudice’ terms) and what, if any, further directions were sought and, in particular, how such directions furthered the overriding objective. Failure to comply with that direction or to engage properly in negotiations might result in the application of sanctions. If settlement had been reached the parties were required to file a consent order signed by all of them. Passing over paragraph 3 of the order (which is not material for present purposes), the order then recorded that the parties had failed to file forms H in accordance with CPR 3.13 where, contrary to assertions, the due date specified in “the notice” - and the notice was in inverted commas - was said to be 9^th September 2013. The parties were referred to CPR 26.3(6A). Paragraph 4 of the order went on to direct the parties to do so - that is to file forms H - by 4 pm on 11^th October 2013 (which was also a Friday), “in default of which the provisions of CPR 3.14 shall apply”. The order went on further to record that the provision of form H was a legal requirement and was to assist on consideration of issues of proportionality and it was not for the parties to agree to waive such requirement.

The first and second defendants each filed their respective forms H before 4 pm on Friday 11^th October 2013. The claimant sent its form H to the court by fax, apparently at 4.41 pm on Friday 11^th October 2013. The faxed version does not appear on the court file. A hard copy version of form H does appear on the file. The covering letter from the claimant’s solicitors, Linder Myers, is dated 11^th October 2013 and is stamped as having been received by the court on Monday 14^th October. The letter states that it is sent by post and fax. The letter simply reads, after reference to the case name and number:

“With reference to the above claim and further to the order of the court dated 2^nd October 2013 please find attached for the court file the claimant’s form H. We confirm that we have served a copy of our form H on the defendant parties.”

On 11^th November 2013 District Judge Matharu reviewed the file and made the following order, which was then drawn by the court on 18^th November 2013. So far as material, the order provided that the claimant was in breach of clause 4 of the court’s earlier order of 2^nd October 2013 so the provisions of CPR 3.14 should apply to the claimant. The result of that order was that, absent relief from sanctions, the claimant’s costs budget was treated as extending only to court fees.

On 21^st November 2013 the claimant issued an application notice seeking to set aside the order of 18^th November to the extent that the same imposed sanctions on the claimant pursuant to CPR 3.14. It was said that the claimant had in fact complied with clause 4 of the order of 2^nd October 2013, having filed and served its costs budget on time. The application notice estimated the length of hearing as ten minutes. The evidence set out in box 10 of the application notice, verified by a statement of truth made by Mr Stephen Edward Boyd, a solicitor with Linder Myers LLP, the claimant’s solicitors, read as follows:

“Pursuant to clause 4 of the order dated 2^nd October 2013 the claimant was required to file cost budget. This has been done. Copies of the letters to court filing the costs budget, serving the same on the defendants, and the cost budget itself appear attached as schedule A. Clause 4 of the order dated 2^nd October 2013 was therefore complied with, in good time, and sanctions pursuant to CPR 3.14 should therefore not have been imposed. The claimant seeks relief from sanction pursuant to CPR 3.9. Such relief would not prejudice the defendants, nor undermine the need to enforce compliance with rules, practice directions and orders, the claimant having complied with the same. Alternatively, the claimant seeks an order to remedy a procedural error pursuant to CPR 3.10 or as part of the court’s inherent power to vary or revoke an order pursuant to CPR 3.1(7).”

None of the documents accompanying that application notice showed the time at which the faxed form H had been sent to the court.

On 18^th December 2013 Mr Boyd made a witness statement. He stated that the matter had previously been dealt with by his predecessor, Stephen Topping, who had resigned from Linder Myers on 18^th October 2013. Mr Boyd stated that he had assumed conduct of the file on Monday 21^st October 2013. Upon taking over the file he had conducted a review of it and had noted paragraph 4 of the court’s order of 2^nd October, which had required all parties to file form H cost budgets by 4 pm on 11^th October 2013, in default of which the provisions of CPR 3.14 would apply. Mr Boyd stated that he had examined the file and noted that on 11^th October Mr Topping had filed and served form H cost budgets by fax and posting that day. He then exhibits copies of Mr Topping’s letter to the court and the defendants’ solicitors. At the time of reviewing the file Mr Boyd said that he was satisfied that the claimant had complied with paragraph 4 of the order dated 2^nd October. He also noted from the file that no correspondence had been received from any of the defendants suggesting that the form H budget had not been served, either in time or at all. Mr Boyd says that on 22^nd November he was therefore surprised to receive an order from the court dated 18^th November, pursuant to which the claimant was held to be in breach of clause 4 of the order of 2^nd October and that the provisions of CPR 3.14 would now apply. (It is accepted that the reference to 22^nd November must be in error because the application notice itself had been issued on the previous day.)

Returning to paragraph 5 of Mr Boyd’s witness statement, he stated that the consequence of the order of 18^th November was, in the absence of relief, that the claimant, even if successful at trial, would not be entitled to recover anything other than fixed costs. Upon receipt of that order – again he says on 22^nd November – Mr Boyd immediately prepared that same day an application to the court for relief from sanctions. He attached to the application the copy letters along with a copy of the cost budget which had been filed and served. When making the application, Mr Boyd says that he had presumed that the court had imposed sanctions because it had not received the form H cost budget at all. Having had sight of the copy faxed letters on file, he had presumed that his predecessor, Mr Topping, had filed and served the form H cost budget before 4 pm on 11^th October. At the time of making the application, it still remains unclear as to whether or not the court imposed the sanctions by way of the order of 18^th November because the form H cost budget was not on the court file at all, or whether the sanction was imposed because the form H budget had been filed late. I interpose to say that (as mentioned previously) there is, on the court file, a hard copy form H cost budget, stamped as received by the court on Monday 14^th October.

Returning to paragraph 8 of Mr Boyd’s witness statement, having made the application he carried out a further review of the file and it was at that time that he noted that the fax cover sheets accompanying the letters filing the cost budget with the court and serving it on the defendants had in fact been sent by fax on 11^th October, but after 4 pm. The form H had been filed at court by fax at 4.41 on 11^th October. He attaches copies of the fax cover sheets. He says that it therefore became apparent that the form H had been filed at the court 41 minutes late.

On 28^th November, upon the noting the fax header sheets, Mr Boyd says that he wrote by email to the solicitors acting for the defendants drawing this issue to their attention but pointing out that this was, in accordance with the recent Mitchell decision, a trivial breach. He pointed out that the Court of Appeal in Mitchell had confirmed that the court should give relief in the context of trivial breaches where a party had “narrowly missed a deadline imposed by an order.” He exhibited a copy of that email. Mr Boyd says that he has heard nothing further from the solicitors acting on behalf of the first defendant, and presumes that they do not intend to resist the claimant’s application for relief from sanctions. There has, however, been an exchange of email correspondence with the solicitors for the second and third defendants, which he then proceeds to exhibit. He says that the correspondence is attached to his witness statement because it includes correspondence directly relevant to the application. He says that within that correspondence there is also discussion in connection with an application for security for costs which was to be heard, he says, on 26^th February and on-going discussions regarding a proposed mediation. He entirely refutes any allegation of actively misleading the court in connection with the application. He says that when he made it, he was genuinely of the opinion that the court had imposed sanctions because the claimant had failed to provide its cost budget at all. It was only subsequently that it became apparent to Mr Boyd that “the probable reason for the sanctions was that the claimant had failed to file its costs budget 41 minutes late”. He points out that he was the one that raised the issue with the solicitors acting for the defendants; it was not something that they had raised themselves, so he fails to see how, in any way, they could suggest that he, Mr Boyd, was misleading the court. That witness statement, as I say, was dated 18^th December 2013.

On 2^nd January 2014 the parties attended before District Judge Matharu. A transcript of that hearing, which extends in total to some seven pages, can be found at pages 166 through to 173 of the appeal bundle. Before District Judge Matharu, Mr Boyd represented the claimant and solicitors represented the second, and the first and third defendants. For the reasons set out in an approved transcript of her judgment (which appears at pages 174 to 177 of the appeal bundle), District Judge Matharu dismissed the application for relief from sanctions. Her order of 2^nd January 2014 can be found at page 76 of the appeal bundle. The claimant’s application of 21^st November 2013 was dismissed. Paragraph 2 of the order recorded that although the principle of costs had been adjudicated upon, through the claimant’s inadequate time estimate quantum remained to be assessed; and by paragraph 3 that assessment of the defendant’s costs was listed for hearing in fact today, 24^th February, at two o’clock. That hearing has since been adjourned. By paragraph 4 of the order, permission to appeal was refused.

The District Judge began her judgment by referring to the nature of the application before her and by reproducing the relevant provision of her order of 11^th November (and perfected on the 18^th of that month). She then proceeded to summarise Mr Boyd’s submission thus: “Yes, we missed the deadline provided by the court but it is a trivial breach” [and he referred to a pertinent paragraph in the recent decision of Mitchell and also provided the District Judge with a decision of His Honour Judge Oliver-Jones in the case of Robert Adlington & Others] and for the order not to be varied or set aside or for the claimant to be refused relief from sanctions was a draconian sanction on the facts of this case.” She also recorded Mr Boyd’s further submission that nothing was in place or any trial timetable that would otherwise affect the efficient progression of the case. The District Judge then proceeded to state that the first and second defendants opposed the relief from sanctions being given. Their position was that they had complied with the court’s orders, and it was not an isolated breach by the claimant but one in the context of another breach, which was non-compliance with the provisions at clause 2 of the order of 2^nd October; that is to say there was a stay until 8^th November and the claimant was to notify the court of the outcome of those negotiations. What Mr Boyd tells the court is this: “Yes, we missed it.”

At paragraph 3 the District Judge asked, “What is the court’s decision?” She stated that there was significant emphasis placed by Mr Boyd on the triviality of the breach and what was relevant was for her to set out some background to the case. She said that she had had regard to the fact that she had case managed the matter when directions questionnaires were filed. She recorded that directions questionnaires by the claimant had said this at section (J):

“Given that the parties have requested a stay in proceedings to allow for settlement discussions to take place and, further, given that there has been no case management conference listed in this claim, in the notice served by the court under CPR 26.3(1) nor any date given for the filing and service of a costs budget, the claimant considers it is proportionate to not incur the cost of completing and submitting a costs schedule in the form of precedent H. If necessary, a costs schedule will be filed seven days prior to the case management conference.”

At paragraph 4 the District Judge stated that that was clearly not correct in law and was wrong. In order effectively to progress the case, the District Judge said that she had made an order on 2^nd October to ensure compliance with the rules which said the following:

“It is recorded that the parties have failed to file forms H in accordance with CPR 3.13.”

The District Judge continued:

“Contrary to the claimant’s assertions the due date specified in the notice was 9^th September.”

She says that she even set out the rules and in order to ensure that there was no further delay and that there was efficient progression of the case, she gave all parties the significant period of time of 4 pm on 11^th October to comply. That, she said, was the opportunity to remedy the breach, in default of which the requisite provisions of the CPR should apply.

At paragraph 5 the District Judge said that the claimant had therefore got it wrong in the first place but in order to remedy their misunderstanding of the rules and consequential breach on their part she had given all parties until 4 pm on 11^th October to comply. The court file clearly showed that the first and second defendants had complied on a timely basis.

At paragraph 6 the District Judge said that the issue the court was therefore required to consider was whether there had been a trivial breach that would thereby entitle her to consider that one paragraph of Mitchell. Mitchell was said to have been a significant decision. It was entirely to deal with the consequences of not filing costs budgets on time.

At paragraph 7 the District Judge said that in the particular case before her the court had assisted the parties to ensure that the case was properly progressed and provided a further direction or timetable for filing forms H. The claimant did not comply.

At paragraph 8 the District Judge said that she had also been referred to another authority of His Honour Judge Stephen Oliver-Jones QC at first instance which, as she recalled, addressed what a triviality could be but on no account excluded reference for some good reason to be given for any such oversight, delay or admission. I interpose to say that I have not been referred to whatever authority is there referred to by the District Judge.

Returning to the judgment, at paragraph 9 she said that the claimant argued triviality but offered absolutely no good – presumably reason - to her for the breach. All that the witness statement in support of the application says is that: “This was done.” She turns to the application notice and the witness statement in support.

At paragraph 10 the District Judge said that she was, of course, required to take into account the particular facts of the case. The claimant said in its witness statement, “We complied and we served it in time”; and that was endorsed with a statement of truth. They did not comply and they did not serve it in time. Other than the submission being made today about trivialities and it being a draconian sanction, regard must be had to the background of a clear lack of compliance with the rules, wholly inadequate or no explanation whatsoever being offered for non-compliance that satisfied the court that she should do anything other than apply the rules, having given all parties the opportunity to bring the case into proper order.

At paragraph 11 it was said that this was a case that required the court to ensure that the provisions of CPR 3.9 were applied. Mitchell made it clear that the two considerations of that rule must be given weight.

At paragraph 12 the District Judge said that she was simply not persuaded or in agreement with what Mr Boyd had to say. “He submits that the breach in this case of 40 minutes in filing is trivial.” He was said to give no good reason or any reason for non-compliance with the district judge’s order, which she had made to correct the parties’ earlier default. “He does not comply with the obligation to update the court as to the outcome of discussions as provided for in an order of the court.”

At paragraph 11 the District Judge said that her order had set out what was required by when and by whom, and as for the issue of “triviality”, other than their doing their job late there was no real reason offered for the failure to comply. His Honour Judge Stephen Oliver-Jones QC was said specifically to have addressed what he would not have considered, ie overlooking or disregarding a deadline. That is said to have been what had happened here repeatedly.

The District Judge concluded at paragraph 14:

“Therefore, the order remains and I also do take into account this was not an isolated breach and the explanation given for not complying with clause 2 of my order of 2^nd October 2013 is also not a good reason. I take that into account when refusing the application for relief from sanctions.”

The District Judge refused permission to appeal. The relevant form N460 is at pages 153 to 154 of the appeal bundle. The reasons for refusing permission to appeal were stated to be as follows:

“Grounds for the application for permission were that I had not considered the applicant’s witness statement dated 18^th December 2013. It was not on the court file and the applicant made no mention of it until the request for permission. As the order was able to be perfected at this stage, the witness statement was handed to me and read. It contained no new information that the applicant had not made submissions upon. All issues contained therein had been made out to me. Permission to appeal on that ground was refused.”

The next ground was said to be that the District Judge’s decision was wrong. It was submitted that being 41 minutes late in filing the form H was a “trivial” matter. She was referred to Mitchell paragraph 40 and the decision of Adlington. These cases were said to have been considered by the District Judge and what the advocate failed to take into account were other relevant parts of those decisions. No good reason or any reason was given for overlooking deadlines.

Further, it was said that the claimant had breached the terms of another order of the court (clause 2 of the order of 2^nd October 2013), and had given absolutely no explanation for that at all. The claimant had also breached compliance with the rules in another respect because in its directions questionnaire at section J the claimant had elected not to file a form H suggesting that there was no due date on the N149C. That was said clearly to be wrong and in order to ensure compliance with the CPR a case management order had been made on 2^nd October 2013 to remedy these defects. All other parties had complied with that order on a timely basis. The application notice was endorsed with a statement of truth saying that the form H had been filed in accordance with the District Judge’s order when it was accepted at the hearing that it had not. It was submitted that there was no prejudice to the parties if the application was granted. A careful balancing exercise was said to have been performed in the exercise of the District Judge’s discretion but this was not an isolated lapse; no good reason was offered, nor was justifiable in all the circumstances.

The reference to the breach of paragraph 2 of the order of 2^nd October was to the requirement, upon the claimant alone, to notify the court in writing by 4 pm on Friday 15^th November of the outcome of negotiations and what, if any, further directions were sought and, in particular, how such directions furthered the overriding objective. Although no specific sanction was attached to that paragraph, it did state in terms that failure to comply with that direction, or to engage properly in negotiations, might result in the application of unspecified sanctions. In fact, all that was done by the claimant was to write to the court by fax on 28^th November (and thus 13 days after the court’s deadline). The letter was in the following terms:

“We act on behalf of the claimant. Further to paragraph 2 of the order of District Judge Matharu dated 2^nd October 2013 pursuant to which the claimant was entitled to notify the court in writing regarding the outcome of negotiations.”

I note the use of the word “entitled.” In fact the claimant had been directed and required to do so. The fax continued:

“We can confirm that the parties have agreed to enter into mediation and are in the process of agreeing the identity of a mediator. In the circumstances the claimant requests an extension of the stay until 4^th January 2014 to enable the parties to undertake mediation with a view to settling the dispute or at least narrowing the issues in dispute.”

No explanation has ever been given as to why it was not until 28^th November that that letter was written to the court. The inference to be drawn is that it was written on that date because that was the date upon which Mr Boyd had reconsidered the court file and had discovered the other error in relation to the late faxing of the form H to the court. That letter provoked a response from the court by way of letter dated 10^th December 2013 in the following terms:

“With reference to the above matter your letter of 28^th November was referred to the Judge who made the following comments: ‘What do the defendants’ solicitors say?’ Please provide written confirmation of the defendants’ agreement to your letter.”

That is the background to the appeal. An appellant’s notice was filed at court on 22^nd January 2014. The grounds of appeal are that the District Judge erred in that she (1) failed to take account, or proper account, of the prejudice which would be suffered by the claimant should relief against sanctions not be granted; (2) gave excessive weight to the breaches of the orders which she identified; and (3) failed to grant relief against sanctions. The matter came before me on paper, sitting as a Judge of the High Court in Manchester, on 5^th February 2014. I noted that this was an appeal against the refusal of relief from sanctions and that there was a further hearing then listed before the District Judge in fact today, Monday 24^th February. I therefore ordered that the application for permission to appeal should be listed for hearing in the applications list in Manchester last Friday, 21^st February, with a time estimate of one hour, and with the hearing of the appeal (subject to permission to appeal being granted) to follow. My order noted, for the benefit of the respondents, that my order was a direction that they should prepare for the hearing of the appeal, notwithstanding that permission had not been granted. I then gave case management directions to lead to an effective hearing of the appeal. Paragraph 4 of my order required the parties to consider the time estimate. As a result of representations made by the claimant’s solicitors and counsel, the time for the hearing of the appeal was extended from one hour to their estimate of half a day.

The appeal came before me at two o’clock last Friday. Before the District Judge all parties had been represented by solicitors. The claimant (and appellant) is now represented by Mr Vikram Sachdeva (of counsel) although, due to other commitments, he has been unable to attend today on my handing down judgment. Mr Sachdeva’s amended written skeleton argument is dated 19^th February 2014; and he addressed me in opening the appeal for about one and a half hours. The first defendant neither supports nor opposes the appeal. The second defendant (Bolton College) does oppose the appeal. It is now represented by Mr Ian Tucker (of counsel). His written skeleton argument is also dated 19^th February 2014. He addressed me in response for about 20 minutes. Mr Sachdeva then replied for a little over 20 minutes. After discussion of how the court should proceed to hand down judgment, and discussion about costs, the court adjourned at about 4.50 pm on Friday 21^st February until two o’clock this afternoon, Monday 24^th February, for judgment.

During the course of the written and oral submissions, a number of authorities were cited to me. I was inevitably taken to Mitchell, focusing in particular upon paragraphs 34 to 51. I was also taken to the Court of Appeal’s later decision in Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624, particularly to paragraphs 38 and 39, 42, 46 and 48. Mr Sachdeva places particular emphasis upon two sentences at paragraph 38:

“Failure to follow [the approach in Mitchell] constitutes an error of principle entitling an appeal court to interfere with the discretionary decision of the first instance judge. It is also likely to lead to a decision that is plainly wrong, justifying intervention on that basis too.”

I was also taken to two decisions of Mr Justice Hamblen (sitting in the Commercial Court). The first is Newland Shipping & Forwarding Limited v Toba Trading FZC [2014] EWHC 2010 (Comm) where the effect of Mitchell was summarised at paragraphs 39 to 45:

“39.

The leading authority is the Mitchell case. This requires a “robust” approach to be taken. As explained at paragraph 41, “the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue”.

40.

Under CPR 3.9 the “paramount” considerations are now “the need (i) for litigation to be conducted efficiently and at proportionate cost and (ii) to enforce compliance with rules, practice directions and court orders - see paragraph 36.

41.

Whilst “regard should be had to all the circumstances of the case …. the other circumstances should be given less weight” than the two “paramount” considerations - see paragraph 37.

42.

The “starting point” is that “the sanction has been properly imposed and complies with the overriding objective” [45]. “An application for relief from a sanction presupposes that the sanction has in principle been properly imposed. If a party wishes to contend that it was not appropriate to make the order, that should be by way of appeal or, exceptionally, by asking the court which imposed the order to vary or revoke it under CPR 3.1(7)” – see paragraph 44.

43.

In considering whether relief should be granted, “it will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly” – see paragraph 40.

44.

“If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted” – see paragraph 41. “Good reasons are likely to arise from circumstances outside the control of the party in default” – see paragraph 43.

45.

In summary, the importance of the “paramount” considerations means that as a general rule relief will not be granted unless (i) the non-compliance was trivial or (ii) there was good reason for the default. Although all the circumstances of the case are relevant, they are of less weight than the “paramount” considerations. Compelling circumstances are therefore likely to be required if relief is to be granted for a non-trivial default for which there is no good reason.

The second of the decisions of Mr Justice Hamblen is the case of Lakatamia Shipping Co Limited v Nobu Su [2014] EWHC 275 (Comm). There, having repeated what he had said in Newland, Mr Justice Hamblen added (at paragraph 15) the following:

“I would add that, conversely, if the applicant can show that the non-compliance is trivial and/or that there was good reason for the default, relief will “usually” be granted. In such a case compelling circumstances are therefore generally likely to be required if relief is to be refused.”

Mr Sachdeva also relies upon paragraph 18 of the same judgment:

“The claimant submits that the non-compliance cannot be characterised as trivial in the light of the history of earlier defaults by the defendants. However, what matters is whether the non-compliance which resulted in the sanction is trivial and in my judgment that involves a consideration of the default in question, not other defaults at other times. The history of default may be a relevant general circumstance to take into account but it does not affect the characterisation of the relevant non-compliance or metamorphose a trivial default into a serious default.”

As will appear, the second defendant submits that this passage cannot stand with the earlier (and uncited) decision in Durrant and should be treated as per incuriam.

Finally, I was taken to two decisions of Judges sitting in Birmingham on the interplay between CPR 3.13 and CPR 26.3, the true effect of form N149C (Notice of proposed allocation to the Multi-Track) as originally published, and the proper approach to CPR 3.14. The first is a decision of District Judge Lumb sitting in the Birmingham District Registry of the Queen’s Bench Division in Burt v Christie (10^th February 2014), in particular at paragraph 25:

“It would be unfair to conclude that the failure to file the costs budget with the directions questionnaire by the defendant on the facts of this case amounted to a breach of CPR 3.13. Even if it were a technical breach (as the defendant’s solicitors should have known better from all the publicity surrounding the Jackson reforms and the Implementation Lectures; the need to consider draft directions that would necessarily involve the topic of costs budgets; and the prompt in the directions questionnaire itself that this is a circular argument as it expressly refers to CPR 3.13), the contents of the N149C sent out by the court in this case were so potentially misleading and the defendant having been misled by them would amount to a good reason to order that the sanction in CPR 3.14 would not apply in accordance with the reasoning of the Court of Appeal in Mitchell.”

The second of the Birmingham decisions is a decision of His Honour Judge Worster sitting in the Birmingham County Court in Porbanderwalla v Daybridge Limited (decided on 30^th January 2014) at paragraphs 10 and 17. In paragraph 10 the Judge referred to the claimant’s argument that because no date had been specified in the notice served under CPR 26.3(1) for the filing of costs budgets, and there had been no case management conference, the requirement for the filing of costs budgets pursuant to Rule 3.13 was never triggered. At paragraph 17 the Judge accepted that argument in the following terms:

“Whilst I can see that the words of Rule 3.13 can be read in a way which justifies the order appealed against without doing any particular violence to the language used, the more natural reading of the Rule is that contended for by the claimant. Absent a requirement for the exchange and filing of a budget in the Rule 26.3(1) notice or a case management conference, the requirement is not triggered. The appeal is allowed on that ground.”

Neither of those two judgments is strictly binding upon me as a matter of precedent since I am sitting as a Judge of the High Court. However, Mr Tucker did not seek to contend that they were wrongly decided on the issue which is relevant to my decision in the present case; and, in my judgment, those two decisions correctly state the law on that issue.

For the appellant, Mr Sachdeva submits that this is a plain case for the grant of permission to appeal, and for the appeal to be allowed. In summary he submits that the District Judge fell into error in the following four respects:

For all of those reasons, Mr Sachdeva submits that there was an error of principle on the part of the District Judge in her approach to the grant of relief entitling the appeal court to interfere with the discretionary case management decision of the District Judge. Reliance is placed in this regard upon the passage in Durrant at paragraph 38 previously cited. In his oral submissions Mr Sachdeva made the following additional points:

In his written skeleton, Mr Tucker submits that, for the reasons given below, District Judge Matharu was in fact well within the wide ambit of her discretion in dismissing the claimant’s application, and was acting in accordance with the new approach to be found in the Jackson reforms and the Court of Appeal guidance in interpreting the new CPR 3.9. As noted by the Court of Appeal in the recent decisions in Mitchell and Durrant, the court will not lightly interfere with a case management decision. In stating this, both judgments had quoted the judgment of Lord Justice Lewison in Mannion v Ginty [2012] EWCA Civ 1667 at paragraph 18 that “it is vital for the Court of Appeal to uphold robust, fair case management decisions made by first instance judges”. It has also been said that “the culture of toleration of delay and non-compliance with court orders must stop”. Mr Tucker emphasises the need to enforce the robust approach of the Jackson reforms in applications for relief from sanctions, as underlined at paragraphs 40 and 41 of Mitchell and paragraph 3 of Durrant. Mr Tucker emphasises that Mitchell established that in applications for relief from sanctions, whilst regard should be had to all the circumstances of the case, the other circumstances should be given less weight than the two “paramount” considerations identified expressly in the new CPR 3.9, namely the need (a) for litigation to be conducted efficiently and at proportionate cost and (b) to enforce compliance with rules, practice directions and court orders.

Mr Tucker submits that in considering whether the breach in the present case is trivial, other breaches may be taken into account. He points to the fact that in Durrant two witness statements had been posted on the day that they were to be filed and served, with the result that they were received by the claimant at approximately one o’clock in the afternoon of the next day, and therefore in breach of the relevant order. At paragraph 48 of the judgment of the court, Lord Justice Richards said that the non-compliance in relation to the two statements, taken by itself, might be characterised as trivial, as an instance where “the party has narrowly missed the deadline imposed by the order”. The non-compliance was said to become more significant, however, when it was seen against the background of the failure to comply with Mrs Justice Lang’s earlier order, and the fact that Mr Justice Mitting, in extending that deadline, had seen fit to specify the sanction for non-compliance. Accordingly, Mr Tucker submits that it is clear that Lord Justice Richards had taken into account other breaches in determining whether the breach giving rise to the application for relief from sanctions was to be classed as trivial. The judgment went on to say that even if the breach were to be regarded as trivial, the application for relief failed because of the weight to be attached to the failure to make the application promptly. Mr Tucker submits that in the later High Court case of Lakatamia,Durrant was not referred to; and the contrary conclusion of Mr Justice Hamblen (at paragraph 18) that the breach in question should be viewed in isolation should be treated as being per incuriam.

Mr Tucker accepts that the District Judge had been in error in treating the failure to file costs budgets in response to the notice of proposed allocation as a breach of that notice; but he says that that issue is irrelevant to the question of whether the order of the 2^nd of October, which required costs budgets to be filed, should have been made. Mr Tucker submits that no compliant having been made about that order, it is not now open to the claimant to seek to argue that the sanction should not have been imposed. Mr Tucker accepts that, in isolation, missing a deadline by 41 minutes is trivial, notwithstanding that the form H is then deemed to be served on the next business day; but when considering that the order missed was an unless order, the breach becomes more significant; and when considering the matter, the other breach of the unless order becomes more significant still.

It had been accepted before District Judge Matharu that the claimant was in breach of paragraph 2 of the order of 2^nd October 2013 because there had been a 13 day delay in writing to the court to notify it of the outcome of the negotiations and what, if any, further directions were being sought, and how they would further the overriding objective. No explanation for that delay had been given in the application for relief, the subsequent witness statement of Mr Boyd, or at the hearing before District Judge Matharu. Mr Tucker reminds the court that the second defendant had reminded the claimant in writing of the need to reply to the court by 15^th November on 13^th November. Mr Tucker therefore submits that, the court having made three orders for the claimant to follow, the claimant had breached two of them. In the light of that, he submits that it cannot be said that the breach of the order with regard to the filing of form H was a trivial one.

Mr Tucker further submits that the application was not made promptly. An application was made on 21^st November; but it had proceeded on a completely erroneous basis, namely that the form H had been sent to the court in good time, and that the order had been complied with. The proper grounds for the application had only been advanced to the court, and placed in evidence, on 18^th December 2013, over two months after the default at 4 pm on 11^th October 2013. Mr Tucker therefore submits that there were two relevant delays. The first was the delay from 11^th October to 21^st November, when an application was made. No explanation has been put forward as to why no application for relief from sanctions was not made on the Monday following the late filing of the form H, on Friday 11^th October. He submits that the claimant must be taken to have known about the original default as soon as the fax was sent. He submits that the claimant should have drafted the relevant application promptly.

In so far as the claimant may have hoped that the default would be overlooked, Mr Tucker submits that that cannot act as a reason for not acting promptly when the default had occurred. The second period of delay is said to be that from 21^st November to 18^th December, the date of the claimant’s witness statement, when it could be said that the application was first perfected. In respect of that, it is said by the claimant’s solicitor that he only realised that the fax was sent after 4 pm on 28^th November; but, Mr Tucker says, no reason is put forward for not verifying that fact earlier; and even then it is only on 18^th December that the correct factual position is advanced. No reason is put forward for that further delay. Mr Tucker points out that in earlier cases, delays of a similar period have been sufficient for the court to conclude that the application was not made promptly. He invites the court to find that the instant application was not made with reasonable promptitude.

Mr Tucker also relies upon (i) the error in the original application as to the basis upon which it was being advanced, and (ii) the absence of any explanation for the failure to file and serve the form H in accordance with the court order, compounded by the complete failure to explain why paragraph 2 of the same order (relating to notifying the court) was not complied with. In the present context, Mr Tucker submits that absent such an explanation, relief should be refused. He says that that should be the case even were the court to find the breach to be trivial, and the application to have been made promptly. To hold otherwise would, he submits, be to extend the concept of relief “usually” being granted in these circumstances to relief “automatically” being granted. Mr Tucker submits that that is not the true ratio of Mitchell, or the basis of the Jackson reforms. Mr Tucker submits that the second breach should be considered at this stage. He also submits that the failure to provide a costs budget has had a real impact upon the progression of the case, preventing meaningful discussions of the costs budgets. Similarly, it is said that it has prevented meaningful mediation, and delayed the progress of the case. It is also said to have resulted in multiple hearings before the court, and increased costs. In his oral submissions, Mr Tucker emphasised that it is not just time in court that is wasted; he pointed to the fact that it is judicial time taken out of court in box work that is also involved, and the consequent diversion, and waste, of judicial resources.

Mr Tucker concludes that although, viewed in isolation, the breach may have been trivial, against the background to the breach, and the application before the court, it is not. In any event, the application for relief from sanctions was not made promptly. Finally, it is said that no attempt has been made to put forward any reason, never mind a good reason, for the failure to comply with the order, or to make the application promptly. To grant relief, absent any attempt at an explanation, would be to extend the concept of relief “usually” being granted to one of relief “automatically” being granted. In short, it is said that District Judge Matharu’s discretion was a wide one, and one that was properly exercised. In the course of his brief, but effective, oral submissions Mr Tucker made the following additional points:

In reply, Mr Sachdeva pointed out that Mr Tucker had not taken the appeal court through the judgment of the lower court, which would normally be the starting point for any appeal. He emphasised, on the issue of promptness, that it was not until 28^th November that the new fee earner, Mr Boyd, had first appreciated that the form H had been filed late, thereby giving rise to any breach of the court’s order. In any event, Mr Sachdeva pointed out that District Judge Matharu had not considered, or relied upon, any lack of promptness in making the application for relief from sanctions. Mr Sachdeva stressed that there needed to be a compelling reason to deny relief if the relevant breach was properly to be characterised as a trivial one. He said that there is no general requirement that relief should only be granted in exceptional circumstances. The District Judge had failed to characterise the nature of the breach as non-trivial; she should have done so. She had then failed to consider whether the reasons advanced by the defendants had been sufficient to justify the refusal of relief.

Those were the submissions as they were advanced to me last Friday. On returning to my chambers from court this morning, I was handed a fax from Mr Sachdeva’s clerk. It included the report of a decision of Mr Justice Leggatt (sitting in the Commercial Court) last Friday, 21^st February 2014. The case is Summit Navigation Limited v Generali Romania Asigurare Reasigurare SA [2014] EWHC 398 (Comm). No written submissions accompanied the fax; but my attention was drawn to paragraphs 1 to 3, 38 to 54 (said to be on the proper interpretation of the Mitchell principles), and paragraph 63 (said to be on costs). At the beginning of the hearing this afternoon, I invited submissions on that authority. Mr Tucker, for the second defendant and respondent to the appeal, submitted that the case was completely distinguishable and added nothing to the arguments which I had already heard. Mr Justice Leggatt had concluded that the Mitchell decision had no direct application to the default in the case before him, which was one of the late compliance with the requirements of an order for security for costs which had given rise to a stay of the proceedings. To the extent that Mr Justice Leggatt had applied the Mitchell decision, it was said that he had failed properly to apply it. In particular, he had substituted the adjective “immaterial” to the Court of Appeal’s relevant characterisation of a breach as either “trivial” or “non-trivial”. Mr Boyd responded briefly in the absence of Mr Sachdeva. He pointed out that Mr Justice Leggatt’s decision had only been handed down last Friday, the day on which I had heard this appeal.

I agree with Mr Tucker that the decision of Mr Justice Leggatt does not affect the outcome in the present case. The case has no bearing upon, and is of no assistance in resolving, the question which I posed at the beginning of this appeal of whether, if the breach of a court order attracting sanctions, considered in isolation, can be viewed as trivial, can another trivial breach of the same order result in it being viewed as a non-trivial breach. That issue did not arise in the case before Mr Justice Leggatt. Moreover, I note that at paragraph 40 of Mr Justice Leggatt’s decision he held that the default in the case before him was not material because, whatever label was used, the case was said to fit exactly one of the examples given by the Court of Appeal in Mitchell at paragraph 40; namely “where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms”; and I emphasise those concluding words. The whole thrust of Mr Tucker’s submissions it that this is a case where, although the party has narrowly missed the deadline imposed by the court’s order, he has not otherwise “fully” complied with its terms. Therefore, although I have had regard to Mr Justice Leggatt’s decision, and I do detect a difference in emphasis between his approach and that of the Court of Appeal in Durrant and Mitchell, it does not seem to me that Mr Justice Leggatt’s decision is of any direct assistance to me in resolving the issue on this appeal.

I remind myself that permission to appeal may only be given where (a) the court considers that the appeal would have a real prospect of success or (b) there is some other compelling reason why the appeal should be heard – see CPR 52.3(6). By CPR 52.11(3) the Appeal Court will only allow an appeal where the decision of the lower court is either (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court. Only the former limb of this test is relied upon in the present appeal. That is rightly so. Although the hearing in the lower court was much shorter than was required for the just disposal of the application for relief from sanctions, that was entirely due to the approach taken by the claimant’s legal representative (not Mr Sachdeva), who had estimated the hearing at only ten minutes and, despite the obvious irritation shown by the District Judge at such a gross underestimate, had not taken up her implicit invitation to apply for an adjournment of the hearing. Thus, the appeal can only be allowed if I am satisfied that the decision of the lower court was wrong.

In my judgment, the original notice of proposed allocation to the multi-track, on its true construction, did not require the parties to file costs budgets with the court by 9^th September 2013. In thinking that it had done so, I am satisfied that the District Judge did fall into error. Although the two decisions in Birmingham are not strictly binding upon me, sitting as I am as a Judge of the High Court, I nevertheless accept the reasoning of both District Judge Lumb in Burt v Christie and of His Honour Judge Worster in Porbanderwalla v Daybridge Limited.

CPR 3.13 provides that unless the court otherwise orders, all parties except litigants in person must file and exchange budgets as required by the rules or as the court otherwise directs. Each party must do so by the date specified in the notice served under Rule 26.3(1) or, if no such date is specified, seven days before the first case management conference. I am entirely satisfied that the form of notice of proposed allocation in the originally published version of form N149C did not amount to a direction for costs budgets to be filed by the date for filing of the directions questionnaire. I understand that that omission has been rectified by a more recently published version of form N149C. I am entirely satisfied that where the originally published form is used, then there is no requirement to file a costs budget in form H at the same time as filing the directions questionnaire. To the extent that the District Judge thought otherwise, then I am satisfied that she was wrong. Nevertheless, having said that, the District Judge was fully entitled to make the order that she did on 2^nd October 2013 in the exercise of her case management powers. Effectively, she was remedying the deficiency in the original form N149C, although she did not view herself as performing that function.

The District Judge, having made the order that she did on 2^nd October 2013, the parties had either (i) to apply to vary or set that order aside pursuant to CPR 3.1(7); (ii) to appeal from that order, or (iii) to comply with it. The parties all chose to adopt the latter course; but the claimant failed to comply in the time prescribed for compliance. It was therefore in breach of the order. Absent the grant of relief, the sanction in CPR 3.14 therefore automatically applied:

“Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.”

Viewed in isolation, the breach in filing form H no more than 45 minutes late on the Friday evening was a trivial breach, even though form H was only treated as having been filed on the following Monday. However, in my judgment the District Judge was entitled to view the quality and magnitude of the breach in the context of the claimant’s non-compliance with another aspect of the court’s same order, namely paragraph 2, which had required the claimant, by 4 pm on 15^th November, to notify the court in writing of the outcome of negotiations and what, if any, further directions were sought, and how such directions would further the overriding objective. That paragraph stated in terms that failure to comply with this direction might result in the application of sanctions.

I accept Mr Tucker’s submission that Durrant, at paragraph 48, is authority for the proposition that the court may take other breaches into account when determining whether the breach which has attracted the relevant sanction, and given rise to the need to apply for relief, is trivial or not. To the extent that Mr Justice Hamblen, in paragraph 18 of Lakatamia, considered otherwise, then I consider that his view is incorrect and was expressed per incuriam. I acknowledge that the previous non-compliance in Durrant related to precisely the same direction (as to the service of witness statements) which led to the application of the sanction against which relief in that case was sought. It may be that Mr Justice Hamblen’s approach is warranted in a case, such as that before him, where the earlier defaults are wholly separate and discrete from the trivial non-compliance which the application for relief is intended to address; but that is not so, in my judgment, in the present case. Here, the claimant was in default, not of one, but of two, separate requirements of the same order by the time the application for relief came before District Judge Matharu on 2^nd January 2014. Looked at separately, each of those breaches may have been trivial; but, in my judgment, viewed together, the District Judge was entitled to come to the conclusion that they merited some explanation or good reason. None was ever forthcoming.

I accept that the District Judge erred in thinking that there had been an earlier breach of the notice in form N149C dated 9^th August 2013; but; in my judgment; that error is not sufficient to vitiate the exercise of her discretion. The District Judge’s misapprehension had effectively by then been overtaken by her unchallenged order of 2^nd October 2013. In my judgment; the District Judge was entitled to have regard to the non-compliance with paragraph 2 of the order of 2^nd October 2013, combined with the lack of any explanation for such non-compliance. In my judgment; the District Judge was entitled to take the view that the combination of (i) a second non-compliance with the very same court order, and (ii) the complete absence of any attempt to explain either that non-compliance, or the non-compliance with paragraph 4, rendered what would otherwise have been a trivial breach a non-trivial one. In my judgment, that entitled her to enquire whether any good reason had been shown for non-compliance. On the evidence before her, there was clearly no such good reason shown. I acknowledge that the District Judge’s judgment could have been more fully and clearly expressed; but the fact that it was not is essentially the fault of the claimant (and appellant) in, first, providing a time estimate of only ten minutes and, secondly, not then asking for an adjournment of the application for relief from sanctions. I note, wistfully, that the argument on the substantive appeal in this case took over two hours before me. The claimant has only itself, or its legal representatives, to blame for the peremptory way in which the application was heard and disposed of.

In short, therefore, in my judgment there is no good reason for me to interfere with the exercise of the District Judge’s case management discretion. If, however, I am wrong in that, and the appeal court is entitled to review the District Judge’s decision, then for the reasons that I have already given I would have come to the same conclusion.

Further, if I am entitled, sitting on appeal, to approach the application for relief completely afresh, then it does seem to me that I am also entitled to consider whether the application for relief was made promptly. For the reasons given by Mr Tucker, I accept that the application for relief was not made promptly. I accept that Mr Boyd did not know until 28^th November that the form H had been faxed to the court out of time; but, as Mr Tucker submitted, the relevant individuals at the claimant’s solicitors must have known on Friday 11^th October, when they had faxed the form H through to the court after 4.00 pm. Therefore an application for relief should have been made much sooner than 21^st November; and the true basis for that application should have been made clear much earlier than the date of Mr Boyd’s witness statement of 18^th December.

In my judgment, all of that amounted to a lack of promptitude which, in itself, would have entitled the District Judge to have refused the application for relief from sanctions. Even if the lack of promptitude was not such a sufficient reason, I consider that the combination of two breaches of the same order, and the complete lack of any explanation for either of them, is sufficient to refuse the grant of relief from sanctions in the present case.

Since I have heard over two hours of argument, I clearly cannot say that this was an appeal that had no real prospect of success. I therefore give permission to appeal. But, for the reasons that I have given, I dismiss the appeal. Given that it was known that Mr Sachdeva would not be available today, the issue of costs was discussed at the end of last Friday’s hearing. Mr Sachdeva accepted that if the appeal failed, then costs should follow the event, and the appellant/claimant should pay the second defendant/respondent’s costs of the appeal. Neither of the other two defendants has taken any active part in the appeal, and there will be no order for costs in their favour.

The quantum of costs was also discussed. Mr Sachdeva acknowledged that there should be a summary assessment of the successful party’s costs; and I heard submissions about that. Mr Sachdeva did not dispute the quantum of costs claimed by Mr Tucker on behalf of the second defendant and respondent. The amount of those costs was, I think, £3,425.87 plus VAT of £685.18 which, since it is irrecoverable, should be added in, making a total of £4,111.05. Unless I receive any other submissions, it is in that sum that I would propose to assess the costs as being both reasonable and proportionate, and considerably less than the appellant’s costs.