Plebgate Appeal: Yes or no?

With grateful thanks to Gordon Exall (@CivilLitTweet) for tweeting updates received from the hearing at the Court of Appeal, the following arguments (expressed of course in the hugely-restrictive 140 characters of a tweet!) were apparently deployed today on behalf of the Claimant in the eagerly awaited ‘Plebgate’ appeal from Master McCloud’s decision dated 01/08/13.

This brief article assumes that the reader is conversant with the said judgment in Mitchell -v- News Group Newspapers Limited.

Those arguments and my ‘top-of-the-head’ thoughts thereon:

1. Parties should have sufficient time to comply.

Of course. But that is a matter for the Civil Procedure Rules Committee and not the Court. In any event, the time limit was, or should have been, known to both parties and it must not be forgotten that the Defendant complied with the deadline and, perhaps significantly, the Claimant was also in breach of the mandatory requirement to engage with the Defendant in respect of budgets and budgetary assumptions.

2. Parties must be informed of sanction to be imposed.

The sanction is of course within the rules now, at CPR3.14. However, Mitchell is not directly concerned with CPR3.14 but with PD51D and, true enough, there is no stated or automatic sanction in PD51D. However, for that argument to curry favour would be to render any and every rule or practice direction silent as to automatic, or providing for a discretionary, sanction, toothless.

3. Court retains discretion and should exercise it properly.

Of course, but the new CPR3.9 applies to Mitchell even if CPR3.14 does not and, if the vast majority of recent decisions are a true barometer, the Jackson reforms blew and blow a chilling wind throughout the profession: comply or else. See, for example, from paragraph 25 onwards in the judgment of Master McCloud.

4. Sanction should be proportionate.

Absolutely and this is the real battleground in Mitchell, it would seem. It is very difficult to not have sympathy, at least with a straight face, with argument that the restriction of the Claimant’s costs to Court fees is disproportionate. But, to my mind at least, that disproportionality falls at the feet of the defaulting lawyers and not the Claimant and that is a significant factor.

It is also said that it was argued today that an appropriate and proportionate sanction would be to disallow any costs incurred during the period of delay. I can see considerable force in that argument (save that it is difficult to conceive in the context of the failure to engage with the Defendant as aforementioned); while it can only apply to cases subject to PD51D (given the absence of discretion under CPR3.14 – the “Unless the Court orders otherwise” opening referring, it seems, to whether or not relief is granted, not as to the imposition of the restriction to Court fees only), without knowing what the Claimant’s costs were during that period of delay there is simply no knowing how much of a sanction, if any real sanction at all, such an order would be. It is undoubtedly not going to be a Draconian sanction (else the Claimant’s lawyers would not have suggested it!) but it may be far too lenient in this more ‘chilling’ climate.

While the Court of Appeal may yet be persuaded to allow this particular appeal, but take the opportunity to fire off a salutary warning to the profession in respect of CPR3.9 and 3.14 moving forward, I retain a particularly strong suspicion that the stricter approach of the revised CPR3.9, coupled with the fact that it is not at all easy to conclude that the Master erred (being at pains to explain that CPR3.14 was not being strictly applied) or exceeded her generous ambit of discretion, will result in the appeal being dismissed.

We shall see! I do not expect judgment to be given today as the Court will likely wish to reserve judgment so as to carefully consider its guidance to the profession generally in respect of costs budgets and indeed, relief from sanction. And doesn’t the profession need it.

Edit: Within seconds of publishing this, Gordon Exall kindly tweeted to say that judgment has indeed been reserved.

Second edit: with grateful thanks to Robin Dunne (@Robin_Dunne), details, again via Twitter, of the Defendant’s submissions are now available:

1. The sanction at CPR3.14 is the default position; budgeting so important as to require serious sanction.

There is much strength in both limbs of this argument. Absent a stated sanction within PD51D and indeed case law on the point, it is not wholly unreasonable to draw support from / make a comparison with the regime under CPR3.14. And of course, nobody will seriously question the importance of budgeting; it is a cornerstone of the Jackson reforms.

2. The sanction cannot be disproportionate as it is the default sanction in the rules; Claimant’s explanation for failures not a good reason to depart.

This of course depends on the first point above to some extent but the absence of good reason is undoubtedly damning on the facts of this matter.

3. It is unclear why the Claimant did not apply for an extension of time when it was known there was a breach.

I suspect that this argument refers more to the failure to file a budget seven days before the hearing rather than the failure to engage. At all events, it is a startling question and the failure to so apply is even more startling. And it remains that there was more than one failing. It really doesn’t bode well for the Claimant.

4. No evidence at all that the sanction prejudices the Claimant and it is surprising that no evidence of prejudice deployed; clear prejudice to the Court.

It gets worse for the Claimant! The prejudice to the proper administration of justice really was hammered home by Master McCloud but the only other, real prejudice is to the Claimant’s lawyers. The Claimant’s solicitors at least are retained under a conditional fee agreement and the inability to recover costs between the parties, in the event that the claim is successful of course, is a bed they have seemingly made for themselves. Any additional costs and disbursements will be met, presumably, by the Claimant’s solicitors and/or professional indemnity and/or (however unlikely) legal expenses insurers.

5. If the appeal were to be allowed, lots of satellite litigation will follow and parties may not comply with budgeting rules.

I have some doubts about this. It is possible, as alluded to above, that the Court of Appeal might find a way to allow this appeal (insofar as it might find a way to reduce the sanction – but to what?) on the particular facts of this case and still make it unequivocally clear that non-compliance under CPR3.14 and moving forward will not be tolerated. Further, it will surely not be the case that anything decided on this appeal could possibly give rise to wilful non-compliance. That said, clarity and certainty, if it is possible to achieve within the boundaries of this appeal, is only to be welcomed and if it can be given it should be given.

We shall all have to wait and see, be it this term or next.

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