Tuesday, 22 October 2013

Cracking the whip

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.

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