The cost and benefit of exemplary co-operation – the judge will see fair play

This was an application for relief from sanctions, and unusually was an application which we, on behalf of the defendant, opposed. Such an application is rarely fertile ground for defendants, heeding the warning of the Master of the Rolls in Denton:

“It should be very much the exceptional case where a contested application for relief from sanctions is necessary … the parties should work together to make sure that, in all but the most serious cases, satellite litigation is avoided even where a breach has occurred…The court will be more ready in the future to penalise opportunism”.

Nevertheless, in this case, we felt that we had found that rarest of things - a case in which potential prejudice to a claimant losing the ability to recover damages against a tortfeasor, was simply not enough to warrant relief from sanctions. 

Facts

The history of this case is a sorry one for those acting for the claimant. 
In 2016 Mr Haynes sustained severe injuries in a road traffic accident caused by the defendant's employee. The claimant's solicitor issued the claim form one day before the expiry of the limitation period in 2019. Proceedings were served two days before expiry of the claim form. 

The claimant failed to comply with multiple directions relating to disclosure and witness evidence, such that a first application for relief was necessary. In February 2022, the claimant was granted relief from sanctions. The claim trundled on.

A preliminary issue liability trial was listed. We made a Part 36. The claimant's solicitor accepted (after its expiry), but did not inform the court. Accordingly, the liability trial remained listed. In February 2023, the claim was automatically struck out for failure to pay the trial fee.
The claimant made an application to restore the case in the barest of terms, which was rejected by the court. Ultimately it was not until January 2024 that a proper application for relief from sanctions was made – 11 months after the strike out.

The claimant asserted that he was the innocent victim of his solicitor's omissions and that the fee-earner concerned was so bad as to amount to a 'rogue solicitor’ - an exceptional circumstance. The claimant confirmed they would bear the costs and accepted that it would be in a ‘last chance saloon’ if relief was granted.  

While accepting that this was a serious and significant breach, and one with no good reason, the claimant maintained that justice would be better served by giving him, an innocent victim of personal injuries, one last chance rather than by causing him to have to sue his former solicitors and hence give the defendant a windfall. He submitted that such an outcome would run contrary to the balance of prejudice and to proportionality and may even undermine public confidence in the legal system. We, on behalf of the defendant, through leading counsel, Charlie Woodhouse KC, submitted that this was an example par excellence for the refusal of relief from sanctions. This was a serious breach and there was no good reason. We accepted that there was some limited prejudice to the claimant but said this could be moderated by an uncontroversial professional negligence claim. There was prejudice to the insurer which had closed its file and released its reserve. There was a history of non-compliance. The application had been made extremely late. Finally, CPR 3.9 specifically required the court to enforce compliance with rules and orders. 
In essence, we argued that if relief was granted, it would signal that, however egregious a claimant’s conduct, where he has been seriously injured and would otherwise recover significant damages, the court would grant relief from sanctions. 

The decision of His Honour Judge Hassall, in dismissing the application and refusing relief from sanctions, is comprehensive and covers several issues of interest in this area of law, particularly the responsibility of a firm of solicitors and the questions of the ‘rogue solicitor’ and promptness.

One feature of the judgment is a key learning point for defendant practitioners. The importance of playing nicely – that is to say avoiding opportunism at all costs, keeping any sharp elbows tucked away, and instead being co-operative and furthering the overriding objective. The court highlights several times in its judgment that the defendant did everything it could to prompt the claimant into remedying the various errors:

• After the issue of liability had been resolved, we prompted the claimant’s solicitor on several occasions to inform the court.
• We ‘reversed conventional litigation practice’ in that we drafted a proposed consent order dealing with the settlement and indeed went on to propose several versions.  
• We, at all stages, acted promptly and in compliance with the rules. We came to the hearing with clean hands.
• Following the strike out, we wrote to the claimant, highlighting that some action needed to be taken to restore the claim, and gave fair warning that we would cancel medical appointments and, ultimately, that the insurer would release the reserve and close their file.

The court highlighted that the defendant had not taken a keep-quiet-and-wait approach, but had encouraged the claimant to act, against it’s own interest. We had forewarned the claimant of our proposed steps and given fair warnings. 

HHJ Hassell described this conduct as:

“exemplary cooperation and consistent with, if not going above and beyond, the requirements of CPR 1.1 , 1.3 and 1.4”.

The learning point – and another trip to antiquity – Homer said, in the 8th Century BC “The God of War (in our line of work, the judge) will see fair play - he's often slain that wants to slay!”  and the same rings true today. 
Therefore, when confronted with an party who is consistently failing to progress a matter or falling foul of rules and orders, the first instinct, to pounce, should be subdued. 

When acting for a defendant, firstly ensure that your own house is in order and that you comply with all requirements and directions. Secondly, go the extra mile to co-operate with the claimant; provide reminders and prompts, agree extensions, give fair warning if you are going to make an application or take a consequential step. 

This could make all the difference when, ultimately, the matter comes before the court, and the third stage of Denton is being considered, it may just tip the balance on the scales of ‘all the circumstances’.