We are all, or should be,
fascinated by the resurgence of interest and activity in the now infamous Plebgate saga.
For anyone who doesn’t recall, former
government chief whip Andrew Mitchell MP was reported by The Sun newspaper to have
been extremely rude to officers of the law who required that he dismount from
his bicycle on leaving Downing Street one day last September. Mr Mitchell has always denied the allegation that
he called the police “plebs” and accordingly began a libel action against News
Group Newspapers Limited publisher of The
Sun.
The proceedings have taken on a
significance of their own because of actions, not by the police, but by
judges.
One of the new rules introduced
in the course of the Jackson reforms,
most of which were implemented on April 1 (yes, if only) was the requirement
for parties to higher-value multitrack
litigation to file and exchange costs
budgets at an early stage of the proceedings.
The process is one of the most
important ‘reforms’ aimed at controlling the amount of costs that litigants are
able to recover from an opponent, irrespective of how much they might
independently be liable to and entirely willing to pay their own lawyers.
To give the provision real teeth,
somebody came up with the idea of a swingeing sanction that if you don’t file
your budget on time then even if you win the litigation, you are not allowed to
recover from the losing party anything but fees paid to the court at various
stages of the litigation.
In other words, the winner can’t pursue
a claim at the end for the costs of his solicitors, barrister(s), expert
witness(es) or other expenses of litigating the case.
The lawyers amongst us don’t need
any explanation beyond that to start shuddering but for others let’s put it in
context. One estimate I have heard,
gauged by reference to the interim costs order made in favour of Peter Cruddas
after winning his libel action against The
Sunday Times earlier this year, is of a minimum of £500,000.
So, Andrew Mitchell’s solicitors
failed to file the cost budget in time and Master Victoria McCloud refused
their application for relief from
sanctions. An initial appeal was
dismissed, the High Court Judge having no difficulty in upholding Master
McCloud’s decision.
Little wonder when you read one
or two extracts from her judgment, notably:-
‘It is a helpful illustration in this case
to consider that, in order to find time in my diary to list this application for
relief within any reasonable time, there being objections from Mr Mitchell’s
side to a long wait, I needed to vacate a half day in my list which had been
pre-allocated to deal with claims of persons affected by asbestos-related
diseases. There is an expedited list for
such claims for because life expectancies are often very short. The impact, therefore, of the admitted
breaches in this case was that the claims of those litigants which could have
been listed in my diary were not listed, and in their place we have an argument
about non-compliance with rules in this defamation claim.’
She went on to explain that it is
quite simply ‘the right of other
litigants to have a fair crack of the
whip where judicial and court resources are very limited, and the right not to
be delayed while the courts dispose of matters which ought not to arise in the
first place if rules are compiled with’.
Master McCloud made it clear that
she wasn’t saying that prejudice of this nature was a pre-requisite to
enforcement of the rules but it is a compelling illustration of the practical
need for litigants not to waste valuable time and resources by failing to
comply with the rules.
All that said, this irresistibly
noble approach doesn’t address the fact that this is an incredibly harsh
sanction, irrespective of where the pain is felt.
Because, whilst Mr Mitchell may
win his case and otherwise have the prospect of recovering from a company well
able to pay costs in excess of half a million pounds, the current effect of
this decision is that he will in no circumstances get no more than about £2,000
towards his costs.
Little wonder that there is a
second appeal pending and booked in to the Court of Appeal for next month
before a bench that will be presided over by
Master of the Rolls, Lord Dyson, himself.
On the one hand you have a man
who has been vilified – he is entitled to say quite incorrectly – running an
appeal because he says he has again been harshly treated notwithstanding an
undeniable breach of the rules.
From another perspective you have
the first hearing of an appeal against one of the most draconian sanctions that
has ever appeared within the rules governing civil procedure in English
law.
Some may say that Mr Mitchell is
appealing, but then again that he is anything but. Seriously, there is a risk
that (quite possibly very unjustly) this man enjoys no sympathy inside or
outside the court. That is a worry, in
case it in any way influences the decision on the appeal.
It is a concern because this
sanction is utterly disproportionate. I
don’t say that as a lawyer who is fearful of being in the same position –
though naturally I am. I say it as an
ordinary citizen who sees this penalty as a sledgehammer to crack a nut.
The application of the sanction
is surely correct but the sanction itself is wrong. I don’t immediately understand how anybody
but the Rules Committee can deal with that fundamental problem.
It may save some people
embarrassment if meanwhile Mr Mitchell is no longer seen as an out-and-out bad
guy, or even if The Sun should happen
to settle his claim in the face of a mounting impression that the police have
misbehaved themselves - although that would do nothing to fix the mess that
Grayling and other zealots have created.
Watch this space.
