Tougher approach to compliance

The Civil Procedure Rule Committee has approved the wording of an amendment which seeks to implement Lord Justice Jackson’s recommendations that the courts “should be less tolerant than hitherto of unjustified delays and breaches of orders” (see our September update Jackson reforms: taking stock under the heading “Relief from sanctions – less tolerant approach”). The amendment will not take effect, however, until the general implementation date for rule changes to implement the Jackson reforms, to coincide with the coming into force of legislation introducing some of the key reforms to costs and funding (anticipated for October 2012). It will then apply to applications made on or after the date of implementation.

The new wording for CPR 3.9(1) will simply provide that 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 all 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 cost; and (b) to enforce compliance with rules, practice directions and orders”. These two factors will replace the current (non-exhaustive) list of nine circumstances the court will consider, including whether the application for relief has been made promptly, whether the failure to comply was intentional, whether there is a good explanation for it, and the effect of both the failure and the grant of relief on each party.

The intention behind the amendment is to force a change of culture, whereby breaches of court orders are no longer tolerated as readily as they are at present, as well as to simplify the rule. The amendment certainly meets the latter objective. It will be interesting to see whether it also accomplishes the former, but we will have to wait until the courts start applying the new rule once it is in force in almost a year’s time.

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