Thursday 31 May 2012 by Simon Allen

Guntrip v Cheney Coaches Ltd, [2012] EWCA Civ 392, Ward, Elias and Lewison LJJ; Fred Perry Holdings Ltd v Brands Plaza Trading Ltd & Another [2012] EWCA Civ 224, Jackson and Lewison LJJ.

Although the report of Sir Rupert Jackson has yet to be implemented, he is of the view that 'there is a growing acceptance now that reforms of the costs regime and, indeed, the civil justice system are going to be introduced along the lines that I have recommended'. While he accepts that this is 'a probability, not a certainty', it is ­evident from these two cases that the Court of Appeal is already implementing the rationale of the reforms in looking at case ­management issues.

In the first case, the appellants sought to obtain leave to introduce a second medical expert's report. The claimant had had a knee replacement in 2006. He was a coach driver and on his return to work there had been no risk assessment and the respondents had allocated him a coach with a manual rather than automatic transmission. It was his case that his subsequent knee problems had been caused by the defendants' failure to respond to the earlier surgery. Unfortunately, the first expert he instructed found it difficult to correlate his return to working as a coach driver with the knee problem. The appellant, therefore, applied for permission to rely on a second expert in place of the first. At first instance the district judge had refused permission citing the following reasons:

• There would have to be a further meeting between experts which would cause significant delay.
• Significant extra costs would be involved and the overall costs burden would be disproportionate.
• There had already been delay with two trial windows having been vacated and, if allowed, this application would mean a third trial date could not be held.
• Having considered the content of the evidence of the second expert, he took the view that the value of his ­evidence would be small.

On appeal, the High Court judge allowed the applicant to rely upon the second expert, hence the matter ­coming before the Appeal Court. In giving the lead judgment, Lewison LJ held that this was a case management issue and, as such, was a discretionary decision which had to be exercised judicially with regard to the overriding objective. These decisions, by their nature, are 'fact-sensitive and case-specific'. It is not possible to lay down hard and fast rules. The Appeal Court rejected the application and, in doing so, cited the report of Jackson LJ in stating that the courts have 'lost sight of the damage which the culture of delay and non-compliance (with court orders) is inflicting on the Civil Justice System'.

In the second case, Lewison LJ sat with Sir Rupert himself in considering whether the defendants should be granted relief against a sanction in respect of non-compliance with a court order. CPR 3.9 identifies the ­factors that the court must take into account. While this was not a personal injury case, his lordship could not resist the opportunity to add further comment to the lead judgment of Lewison LJ and provided the following soundbites for our ingestion, namely:

1) Non-compliance with the Civil Procedure Rules and Orders of the Court on the scale that has occurred in this case cannot possibly be tolerated.

2) There is a concern that relief against sanctions is being granted too readily at the present time.

3) Such a culture of delay and non-compliance is injurious to the Civil Justice System and to litigants generally.

Lastly, his lordship pointed out the imminent amendment to rule 3.9(1) which will come into force on 1 April 2013 and reads as follows: 'On an application for relief from any sanction imposed for a failure to comply with any rule, practice, direction or court order, the court will consider the ­circumstances of the case, so as to enable it to deal justly with the ­application including the need: a) for litigation to be conducted efficiently and at proportionate costs; and b) to enforce compliance with rules, practice directions and court orders.'

He advised litigants that after 1 April those who substantially disregard court orders or the requirements of the Civil Procedure Rules will receive significantly less indulgence than ­hereto. We have, therefore, been warned. Case management of personal injury cases is currently variable. Compliance with court orders is rather lax. After 1 April 2013 and, perhaps more immediately, in light of the expressions of concern by the Appeal Court in these cases, claimants will have to be aware that a mischievous defendant chancing their arm with an application and ­citing these judgments may well be successful in obtaining a more ­draconian order than he may in the past have expected.

The converse, of course, is that the failure of defendants at times to ­comply with the pre-action protocol and case management orders presently goes largely unpunished. What in these two instances penalised the claimants can equally be used in ­applications against non-compliant defendants.

We are seeing a hardening of the judicial attitude towards the failure on the part of legal practitioners to ­comply with the Civil Procedure Rules. Cerberus may well shortly replace the toothless hound as the penalties become more severe. Providing that the same rules apply to both parties to an action, practitioners should ­welcome this more robust approach as certainty will then prevail.

Simon Allen, Russell Jones & Walker