Delay Always Breeds Danger – Samara v MBI [2014] EWHC 563 (QB)

colin_richmond Colin Richmond

Please click here for the judgment.

In this case, Mr Justice Silber considered whether or not the “new regime,” namely the amended CPR 1 and the “Mitchell” criteria, applied to an application to set aside judgment in default.

The Facts

The claimant obtained judgment in default which the defendant wished to apply to set aside. There was some discussion between the parties regarding the proposed application, which was ultimately made 15 months after judgment was entered. The application was refused by the Master and the defendant appealed.

Application of the New Regime

V. Does the new regime apply to the application to set aside the judgment pursuant to CPR 13.3?

  1. The new regime came into force on 1 April 2013. It is common ground that the illuminating and very comprehensive 15th and 18th Lectures in the Implementation Programme on the Application of the Amendments to the Civil Procedure Rules do not deal specifically with the approach to CPR r.13.3 and my attention has not been drawn to any of the other lectures in that series that deal with this issue or anything in Sir Rupert Jackson’s report which does.
  1. Mr. Neaman submits that the underlying philosophy and the rationale behind the consequential amendments to the CPR have changed the approach of Courts to failures to comply with all rules and orders, including CPR r. 13(3).
  1. Insofar as Mr. Dale contends that the new regime does not apply to the special rules under CPR Part 13 because there had been no trial, I cannot agree because the new regime has universal application to all rules in the CPR. Indeed, it is based on and underpinned by the changes to the overriding objectives which apply to all parts of the CPR. As is widely known, the new overriding objectives in CPR r.1.1 state (with the post-April 2013 additions in bold) that:-

“1.1. (1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at a proportionate cost includes, so far as is practicable …

(f) enforcing compliance with rules, practice directions and order.”

 

  1. There is no express statement that CPR Part 13 or that any part of it is excluded from these provisions and I have found nothing in the rules or in the decided cases to show expressly or impliedly that this is so. Further, there is no theoretical justification from excluding this rule from the new regime and the new underlying objectives. Indeed, most importantly, the Master of the Rolls, Lord Dyson, described the effect of the new regime in very general terms and as being of universal application when giving the judgment of the Court of Appeal in Mitchell v News Group [2013] EWCA Civ 1537 when he explained that:-

(a) “[T]he new more robust approach [which] will mean that from now on relief from sanctions should be granted more sparingly than previously” ([46]);

(b) This approach, which meant an end to the belief that the “culture of delay and non-compliance “would continue (ibid);

(c) “[T]he starting point should be that the sanction has been properly imposed and complies with the overriding objective” [45];

(d) Relief would be granted if the default is trivial “provided that an application is made promptly” (ibid [40]) or if there is a good reason for failure to comply (ibid [41]). Good reasons are likely to arise from; circumstances outside the control of the party in default (ibid [43]) and by contrast inefficiency or incompetence of a party’s solicitors –for example, the fact that a deadlines is simply overlooked- is unlikely to prove a good reason (ibid [41]) (see Leggatt J in Summit Navigation Ltd and another v Generale Romania Asigurare Reasigurare SA and another [2014 EWHC 398 (Comm)[39]); and

(e)  Applications for relief must be made promptly (ibid [40] and [46]).

  1. The need for promptness in making applications was also stressed by Richards LJ when giving the judgment of the Court of Appeal in Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624 when refusing to grant relief from a sanction for failing to serve witness statements in time (see especially paragraphs [40] –[56]). Similarly, in Thevarajah v Riordan [2014] EWCA Civ 14, the Court of Appeal considered that the delay in making the application for relief was an additional reason why it had to be rejected. It is very clear that in the new regime, the need for promptness has even greater significance than it had previously and that relief will be granted much more sparingly than hitherto. I will have to consider if this means that the decision of the Master cannot be faulted unless, as was explained in Mitchell, the delay was trivial or unless there was good reason for it.

The Decision

The judge dismissed the appeal. Having found that the new regime did apply, he went on to find that:

  1. The stark fact is that a party against whom a judgment in default has been entered has a clear obligation to apply promptly for the discharge of the judgment as is made clear from the wording of CPR r.13.3(2). It is no excuse for any delay for that party to wait to see if the Claimant will agree to the discharge of judgment. I therefore reject the contention that the Master erred in holding that there was excessive delay.
  1. I should add that, as I have explained in paragraph 36 above, relief is usually only to be granted under the new regime if the default is trivial and there is good reason for the failure and not because of inefficiency. In this case, the First Defendant cannot show that its case falls within either of those exceptions as I have concluded that there was no justification for its failure to make the application to set aside any earlier for the reasons given by the Master. Indeed their failure to do so was a consequence of their inefficiency.

The Old Regime

The judge, in case he was wrong about the new regime applying, went on to find that he would have made the same decision under the old regime – “The totally unexplained and lengthy delay would trump by a substantial margin the countervailing factors relied on by Mr Dale.”

The Lesson

The new regime does not undermine the provisions of CPR 13.3, however any application must be made promptly. To delay in doing so may be fatal.

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