the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Expert evidence in road traffic cases

Is the evidence of an expert in cycling safety reasonably required in a personal injury claim arising out of an accident which the claimant alleges was caused by the highway authority’s breach of duty (in respect of maintenance, layout etc)? At a Case Management conference in the case of Allen v Cornwall Council [2015] EWHC 1461 the District Judge gave the claimant permission to rely on such evidence to deal with allegations of contributory negligence made by the defendant. He refused to grant the defendant permission to rely on its own evidence.  In the case of Liddell v Middleton (7th July 1995, Unreported), the Court of Appeal gave guidance as to the admissibility of expert evidence in road traffic claims. Stuart-Smith L.J. said that in such cases the function of the expert is to furnish the judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the judge to interpret the factual evidence of the marks on the road, the damage, or whatever it may be. What he is not entitled to do is reach conclusions on facts or give his opinion on whether there was a breach of duty. In Liddell the Court of Appeal found the ‘expert’ had overstepped the mark and given evidence which was entirely irrelevant and inadmissible. The defendant in Allen appealed the District Judge’s order and the case was heard by Green J. He would not interfere with what was a case management decision of the district judge. Green J found that the district judge was addressing a threshold issue as to whether the evidence should be admitted for the purpose of case management but, he had made it clear it was without prejudice to any more mature and considered view which a trial judge might take. He had not given the defendant permission to have its own report because it might see the expert evidence of the claimant and decide that it wanted to abandon allegations of contributory negligence altogether. Green J held that the district judge had not seen the expert’s report at the time he made his decision and therefore he was not in a position to assess its content; he took account of the fact his decision would not bind the trial judge. Green J thought that the facts of the case were somewhat unusual (as it was not a case of a collision with a pedestrian or another vehicle but one involving the condition and layout of the highway). He did not rule on the admissibility of the evidence but thought the judge had not acted outside the generous ambit afforded to a judge exercising his case management powers. Green J acknowledged the ‘practical force’ of the defendant’s complaint that the judge should have required the report to be prepared and produced before granting permission. Indeed the defendant’s suggestion that this would have been the appropriate course was commended as ‘sensible’. It is notably the course commended by the Court of Appeal in Casey v Cartwright in the context of low velocity road traffic accident litigation. But Green J did not think the judge had erred in not adopting this approach. This case raises an interesting question as to when exactly the threshold is reached for the granting of permission for expert evidence at the case management stage: when is expert evidence ‘reasonably required’ (CPR 35.1)? In Casey the question was whether, once the judge had seen the expert evidence, the issue itself had a ‘real prospect of success’. Liddell v Middleton and the decision in Allen tend to suggest that at the case management stage the question is no more than whether it is arguable that the evidence is admissible - the final decision rests with the trial judge. The questions the expert was to examine included where a cyclist should be positioned on a carriageway and whether he was cycling too fast or should have dismounted where visibility was poor. Do such questions require expert evidence? If so, why not in cases involving motorcycling, lorry driving and other modes of transport which may be outside the experience of a trial judge? It will be interesting to see what the trial judge decides. In the meantime it is striking that, at the appeal, Green J gave the defendant permission to rely on its own expert evidence before it had seen the evidence of the claimant. Draw what conclusions you will… (Ian Miller represented the defendant on the appeal)

Guidance as to Litigants-in-Person, a sign of the times?

The Bar Council, Law Society and Chartered Institute of Legal Executives has produced some joint guidance for lawyers in how to conduct themselves towards a litigant-in-person. The Guide (available at http://bit.ly/1IkTPig) remind practitioners of their professional obligations and that the growing rise in unrepresented parties should be regarded as a sign of the times, rather than a sign of there simply being more vexatious litigation. It recognised that the increase in litigants-in-person may lead to an increased burden of work upon a represented party, ranging from the practical production of bundles, to the degree of procedural assistance such a party ought to offer.   The Guidance suggests (amongst other key points):   You should take care to communicate clearly and to avoid any technical language or legal jargon, or to explain jargon where it cannot be avoided: a LiP who is already feeling at a disadvantage may be further intimidated and antagonised by the use of such language.   You should take extra care to avoid using inflammatory words or phrases that suggest or cause a dispute where there is none, or inflame a dispute, and avoid expressing any personal opinions on the LiP's behaviour…   If you speak to a LiP outside court it is generally wise to do so in the presence of a colleague, if possible. It would be wise in any event to make a note as soon as practicable of any material explanation or assistance which you have given to a LiP.   If you are negotiating a settlement it would be more appropriate to say ‘are you prepared to agree to…’ rather than to say ‘the courts in this situation would never agree to x, so I suggest that you agree to….’. The latter approach might be seen as unfair to the LiP, even if legally accurate.   Where a LiP is a defendant to proceedings and no other pre-action protocol applies, the Civil Procedure Rules (CPR) state that you should refer the LiP to the Pre-Action Conduct Practice Direction and draw their attention to paragraph 4 which concerns the court's power to impose sanctions for failure to comply with the Practice Direction. You can inform the LiP that ignoring the letter before claim may lead to the claimant starting proceedings, and may give rise to a liability for costs.   Where a specialist protocol applies and more detailed pre-action procedures are required, a LiP will ultimately be subject to the same obligations as a represented party. You should consider sending a copy of or a web-link to the relevant protocol to a LiP when first contacting them about a claim.   You should communicate in a manner of which the court would approve, which includes treating LiPs with courtesy and in a way that any ordinary person would regard as fair and reasonable. This does not mean that you have to tolerate unacceptable behaviour from a LiP, nor does it mean that a LiP has a right to expect you to respond immediately to their calls or correspondence.   It will be important to explain to your client why you are giving assistance to the opposing party, if this is not made clear in court by the judge. You should emphasise that you have a professional duty to the court and that in the interests of fairness the court may require you to provide procedural assistance to a LiP.

Costs Budgeting: reforms on their way…

Jackson L.J. delivered a speech on costs budgeting on Wednesday. For many of us engaged in CCMCs who encounter inconsistency, courts overwhelmed by the volume of hearings, unnecessary costs incurred and often the thinly disguised frustration of judges with the process, his conclusion that ‘costs management works’, may come as a surprise. His proposals for reform, including fixed costs in some multi-track cases, may not. In his speech he gave 7 benefits of costs management (see below) but he also dealt with objections and problems and made recommendations. I pick out a few: First, he mentioned the costs of the process in low value multi-track cases which he defined as up to ‘about £50,000’. Leeds District Judges recommended fixed costs for such cases and Jackson L.J. endorsed the recommendation for fixed costs in the lower reaches of the multi-track ‘strongly’. Secondly, the issue of judicial inconsistency, unduly long hearings and micro-management he thought should be dealt with by better compulsory judicial training. Thirdly, the problem of the wide variation in the forms of costs management orders he recommended should be dealt with by a standard form of costs management order. Fourthly, he thought that the time for filing and exchanging budgets should be increased so that they are lodged 14 days before the CCMC although there must be a discretion for the court to specify a different period. Fifthly, he was of the view that Precedent H could be improved but he recognised that solicitors had been developing their IT systems for the purpose of completing Precedent H and therefore he did not want to make successive changes. Sixthly, the problem of delays and backlogs of CCMCs he thought should be tackled by repealing PD 3E which says that courts will generally make a costs management order under rule 3.15 where costs budgets are filed and exchanged. The PD should be replaced with a judicial discretion on whether to make a costs management order and criteria to guide its exercise. Seventhly, he acknowledged the backlog of clinical negligence cases in London and suggested that all London Clinical negligence cases with CCMCs listed between October 2014 and January 2016 be released from costs management and called in for short old-style CMCs. He thought a similar solution might be required in Birmingham and Manchester. Eightly, he addressed the issue of incurred costs and the practice of doing as much work before the CCMC in order to shelter costs within the ‘incurred’ column. He did not think that it was appropriate for judges at detailed assessments to treat absence of ‘comment’ on incurred costs as approval. He suggested powers to comment on incurred costs, summarily assess them or set a global figure for any phase to act as an incentive not to put forward excessive incurred costs. In clinical negligence cases he thought that there was a need to introduce pre-action costs management. Ninthly, Jackson L.J. expressed concern about the increase of court fees introduced in March 2015. He thought they should be disregarded when considering whether a party’s costs are proportionate. These are just some of the areas touched upon in Jackson L.J.’s speech which can be read in full by following my hyperlink. He ended his talk by arguing that Costs Management was in the public interest. He thought that lawyers disliked it because it meant more work and required us to develop new skills. He predicted that within the next 10 years costs management would be accepted as an entirely normal discipline and people would wonder what all the fuss was about. For the time being Costs Budgeting is here to stay – but reform is now overwhelmingly likely to occur and we can expect to hear from the Coulson Committee in due course on what form the new rules are likely to take.   The benefits of Costs Management (refered to above) Both parties to litigation know where they stand financially It encourages early settlement It controls costs from an early stage It focuses attention on costs at the outset It stops CMCs from being formulaic leading to debate about what is really required It is fair to give your opposition notice of what you are claiming It prevents losing parties from being destroyed by costs  

A Judgment for What? The Effect of Default Judgments

Where a defendant admits breach of duty but wishes to contest causation, injury and quantum, it has in the past been common practice for it to allow judgment to be entered in default of Acknowledgment of Service or of Defence and to proceed to contest the remaining issues at an assessment of damages hearing.  An alternative course of action, which in the short term is more expensive, is to file a Defence making appropriate admissions and then for the claimant to seek entry of a judgment for damages to be assessed. In Symes v St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB), the claimant was referred to hospital in October 2008 by his GP with a lump on his face which turned out to be a malignant tumour.  In January 2009, a consultant decided that he should have an urgent superficial parotidectomy, but that was not carried out prior to May 2009, when it was found that the tumour had invaded the facial nerve and there had been metastasis to the lungs, leading to the need for a total parotidectomy and the loss of the left facial nerve and inoperable lung cancer.  In 2011, an open admission was made that there had been a breach of duty in failing to identify that the lump was suspicious of malignancy and in the delay in operating, but the defendant’s solicitors made it clear that its view was that the invasion of the facial nerve and the metastasis to the lungs were not attributable to either breach of duty. Proceedings were initially struck out for non-service, but on re-issue, the claimant pleaded his causation case in detail in the Particulars of Claim.  The defendant did not enter an Acknowledgment of Service or a Defence.  Master Roberts entered judgment in default of Acknowledgment of Service and set a date for a directions hearing.  The parties agreed the terms of an order before the hearing and the Master ordered that the parties would have permission to rely on expert evidence on “quantum, condition and prognosis” from experts in oncology and care.  The defendant continued to reiterate in discussions between solicitors that the claimant’s case on quantum was in dispute, save that it was accepted that there was a liability to pay damages for pain and suffering during the delay in treatment.  However, it was not until the claimant sought an interim payment of £50,000 that his advisers expressly asserted that the default judgment precluded the defendant from contesting the pleaded allegations of causation.  Whether or not the claimant was entitled to that interim payment depended largely on whether the claimant was correct as to the effect of the default judgment. At first instance, in a judgment given on March 21st 2014, the Master upheld the claimant’s contention.  He ruled that the Particulars of Claim stood as a template for the default judgment and that the defendant accordingly could not contest causation.  He castigated the defendant for having acted in a manner contrary to the overriding objective and having failed to comply with the obligation in CPR 16.5 to respond properly to the Particulars of Claim by serving a Defence. On appeal, Simon Picken QC, sitting as a Deputy High Court Judge, allowed the appeal.  In his judgment, the deputy judge reviewed the case law in some detail.  In particular, he closely examined the leading case on the subject, Lunnun v Singh [1999] CPLR 587, which had followed an earlier decision of the Court of Appeal refusing permission to appeal in Turner v Toleman [1999] unreported, January 15th.  The judge held at [62]-[63] that he was bound by the decision of the Court of Appeal in Lunnun to conclude that the default judgment established no more than that the defendant was in breach of duty and that the breach had caused some damage.  There was no special rule applicable to clinical negligence cases: at [64].  Lunnun remained good law following the introduction of the CPR: at [65].  He also said that as a matter of principle that since the defendant admitted part of the claimant’s pleaded case on causation (that the delay in treatment led to pain and suffering) there was no basis to construe the default judgment as extending to the other consequences which were said to follow from the breaches of duty: at [66]-[68]. The deputy judge then went on to consider whether the defendant had acted contrary to the CPR.  The rules did not state that the effect of a default judgment for damages to be assessed precluded a claimant from contesting a pleaded case as to causation: at [83].  It followed from the decision as to the effect of the default judgment that the defendant had been entitled not to serve a Defence and so there was no breach of CPR 16.5: at [84]-[85].  Accordingly, while it “would have been more sensible” for the defendant to serve a Defence, it was not in breach of the rules for failing to do so: at [86]-[87].  Nor was the defendant in breach of the overriding objective, since it had made its position clear in correspondence to the claimant’s advisers, if not to the court: at [89]-[91].  The claimant’s advisers accepted that they had known that the defendant’s solicitors were under what they regarded as a misapprehension.  In those circumstances, both parties should have brought the misunderstanding before the court at an earlier stage: at [92].  In Parkhouse v North Devon Healthcare NHS Foundation Trust, at a hearing on May 6th 2014, this course had been taken where default judgment had been entered but at a directions hearing, the defendant had made it clear that causation was in dispute.  Master Roberts himself denied that there was any need for the directions order to make clear that it was open to the defendant to contest causation, although in the event a recital was inserted to that effect. The extent to which, in clinical negligence cases, the practice of allowing default judgment to be entered in this way is followed is not clear.  Anecdotally, it appears that both courses of action are utilised by defendant’s solicitors.  Even though the practice has been legitimised (subject to any further appeal to the Court of Appeal) by the decision in Symes, nevertheless the modest cost savings in not serving a Defence in a case where there is a clearly pleaded case in causation are surely outweighed by the need to ensure that both parties are absolutely clear about the extent to which the critical issue of causation is being contested.

Exit Mitchell enter Denton

Our jurisdiction generally does not favour laws (whether judge- or parliament-made) which fail to take account of what is just in the individual circumstances of the particular case. The common law prides itself in being able to adapt to new situations to yield what we would generally understand to be the ‘right’ result. This is a priority of our legal system and Mitchell fell foul of it – whether because it overstepped the mark in the first place or whether because it was wrongly interpreted. It is a strength of our system that it has been able to correct itself within such a short space of time. Exit Mitchell and enter Denton (or perhaps it will become known as ‘Decadent’). The Court of Appeal explains that when approaching rule 3.9 the first stage is to identify and assess the seriousness and significance of the ‘failure to comply with any rule, practice direction or court order’. If the breach is neither significant nor serious then there is no need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]’. The assessment of ‘seriousness and significance’ is substituted for the ‘triviality’ test. The Law Society had contended for a test of ‘immateriality’. The Court of Appeal was content with this as long as it involved not just a question of whether trial dates were affected but also the effect on litigation generally. Because this test did not take account of breaches which were serious but did not affect the efficient progress of the litigation, the Court preferred to stick to whether or not the breach was ‘serious or significant’. At this stage unrelated past failures should not be taken into account. The second stage is to consider why the default occurred. The examples in Mitchell are to be considered as no more than examples. When it comes to the third stage, if there is a serious or significant breach and there is no good reason for it the application will not automatically fail but the court will consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’. The Court of Appeal rowed back from the epithet ‘paramount importance’ which had been attached to the only two factors expressly referred to in rule 3.9. They are now of ‘particular importance’ and should be given particular weight when all the circumstances of the case are considered. The Court of Appeal is on a tight rope. Its aim is evidently to avoid relaxation which 'will inevitably lead to the court[s] slipping back to the old culture of non-compliance which the Jackson reforms were designed to eliminate.' Equally it wants to put an end to the plethora of decisions which have come from some judges which are 'manifestly unjust and disproportionate'. Whether Denton will achieve that remains to be seen.

Jackson on Jackson

“It was no part of my recommendations that parties should refrain from agreeing reasonable extensions of time, which neither imperil hearing dates nor otherwise disrupt the proceedings” said Jackson L.J. in Hallam Estates Limited v Teresa Baker [2014] EWCA Civ 661. In Hallam the claimants (paying parties) asked for an extension of time for filing their points of dispute in proceedings for detailed assessment of costs. The defendant had been late in filing her bill of costs. Jackson L.J. held that they had given sensible reasons for asking for the extension and, given her own delay, the defendant could hardly object to a modest extension. Pursuant to r. 3.8(3) the court’s approval was required for such an extension but this should have been no more than a formality. In fact the judge approved it on paper without a hearing and this approach was endorsed by the Court of Appeal. Rule 3.8 is about to be amended to allow parties to agree extensions of time for up to 28 days as long as no hearing dates are imperilled. The parties have a duty to further the overriding objective (which includes allotting an appropriate share of the court’s resources to cases) and thus, according to the great man himself, agreeing reasonable extensions which don’t imperil dates or disrupt the course of litigation is not a breach of a legal representative’s duty to their client. Jackson L.J. made it clear that if an application was made for an extension of time before the expiry of the time permitted by a rule or practice direction the application remained an application for an extension of time even if time expired before the application was heard. He said that the principles governing relief from sanctions were not applicable in these circumstances. As was said in Mitchell itself, it is clearly better to make an application for an extension in advance if a deadline is likely not to be kept. Greater clarity has now been brought to the extent to which parties can agree extensions of time. A number of cases have now emphasised the need to identify whether a court sanction has actually been imposed by breach of a court order, rule or practice direction – not all breaches automatically result in a sanction and therefore it is doubtful that relief from sanctions is required in such circumstances.                

Rule 3.10: looking beyond 3.9 for relief

The dreaded realisation that you have not complied with a rule or practice direction. Your life flashes past you and a cold sweat breaks out. Out comes rule 3.9 and the new criteria, Mitchell, a call to the insurers… Or perhaps r. 3.10 applies? “Where there has been an error of procedure such as a failure to comply with a rule or practice direction- (a) The error does not invalidate any step taken in proceedings unless the court so orders…” There are some nuggets to be found in the recent case of Integral Petroleum v SCU-Finanz AG [2014] EWHC 702 (Comm) in which the scope of r.3.10 was explored by Popplewell J. In Integral the parties agreed an extension of time by e-mail for the service of the Particulars of Claim by 28 days to 6th June (in fact 28 days would have given until 10th June). The Particulars were served by e-mail at 18.41 on 10th June meaning they were deemed served out of time. SCU challenged validity of service on the grounds that e-mail was not a permitted method of serving and, in any event, service was late. No Defence was filed and Integral obtained judgment in default. Under r.6.20 e-mail may only be used to serve documents other than the claim form where a party has indicated that he or she is willing to be served by e-mail. SCU had not given such an indication. The judge found that the error of procedure in serving the Particulars of Claim by e-mail was a failure to comply with a rule or practice direction which fell within r. 3.10. Accordingly under r. 3.10(a) such service was a step which was to be treated as valid: He considered that the rule was to be construed as of wide effect so as to be available to be used beneficially wherever the defect has had no prejudicial effect on the other party. The method of service was recognised but the formalities necessary to make it a permitted method had not been concluded.  He drew a distinction between service of the originating process and service of Particulars of Claim and thought a narrower approach to r. 3.10 should be taken when dealing with the originating process. r. 3.10 was particularly apposite for treating as valid a step whose whole function was to bring a document to the attention of the opposing party where such function has been fulfilled - he said “It prevents a triumph of form over substance”. The judge also found that the rule applied in relation to service of the Particulars of Claim 5 days out of time. The upshot of all of this was that Integral could not set aside judgment as of right but the judge did set it aside under r. 13.3. Rule 3.10 is one to bear in mind when you next find yourself having a scrape with deadlines, procedural formalities etc. In the light of Mitchell the caselaw on this rule is likely to expand greatly.

The Problem with some Uncooperative Litigation Friends

What happens when you are involved in litigation where a party’s interests (either your client or the other side’s) are represented by litigation friend who refuses to cooperate with you or other people involved in the case? In many cases, surely the answer is simply to apply to the court for the recalcitrant litigation friend to be replaced for the best interests of the protected litigant. However it is clear that notwithstanding the manifest damage being caused by an uncooperative litigation friend, their removal may be anticipated to do more harm than good. Such was the case in M (a child by his father & litigation friend) v LB of Lambeth (Defendant / Pt 20 Claimant) & Hyde Southbank Homes Ltd (Pt 20 Defendant) [2014] EWHC 57 (QB). Here C had suffered a serious injury after falling from a window, aged four. His own medical expert stated that C had probably suffered a brain injury and there was "significant brain impairment". However, the defendant's experts stated that C's impairments "were consistent with his pre-injury functioning" and on balance were probably "secondary to his inherent pattern of development and may have been contributed to by social and cultural factors". In short, the experts were poles apart. C’s litigation friend was no longer prepared to co-operate with medical experts and was not amenable to putting in place the support recommended for C. He and C’s mother had instructed C's solicitor to settle the claim as soon as possible. Sensibly worried about the situation they found themselves in, C's solicitors sought the court's guidance upon whether the litigation fiend’s appointment should be terminated, and whether the case should be settled even though it remained unclear whether C had suffered a brain injury and what his disabilities might be in the future. However, the Court held that as the litigation friend was also C’s father, even should a new litigation friend be appointed, it would be unlikely that C’s parents would become any less uncooperative as they were being presently and would probably continue to hinder C’s best interests. Against this background, it was held that the best (or perhaps the “least worse”) course in this particular case was for C’s solicitors to seek to negotiate settlement on the basis of the existing medical and other evidence, as instructed by C’s father and current litigation friend. Clearly this was a far from ideal position for either C or indeed the Defendant Party. Without greater clarity as to C’s medical position there was inescapably a risk of significant injustice to both sides. However when faced with such an unusual situation, the Court held there was little positive it could do, rather than risk making the position worse. This must have weighed heavily upon Mr Justice Tugendhat’s mind when he later came to approve the settlement the Parties reached.

'Plebgate', budgets, relief from sanctions and a new kind of justice

The Court of Appeal have now finally had their say on the Jackson Reforms: "...we hope that our decision will send out a clear message". The message is that a "new more robust approach..." has arrived. Failure to file a costs budget in time will result in parties being "treated as having filed a budget comprising only the applicable court fees" and relief from sanctions will only be granted where there has been a "trivial breach" or where there is a "good reason". The new approach "will mean that from now on relief from sanctions should be granted more sparingly than previously". Mr Mitchell's case (Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1526) provided the perfect vehicle for the Court of Appeal. The Sun newspaper had reported that Mr Mitchell had engaged in a foul mouthed rant against police officers. Mr Mitchell issued proceedings alleging defamation on 7th March 2013. A CMC and costs budget hearing was fixed for 18th June 2013. On 17th June Master McCloud sent an e-mail to the parties' solicitors noting there was no budget for the claimant. The budget was filed that afternoon with an estimated figure of £506,425. Master McCloud ordered that the claimant be treated as having filed a budget comprising only the applicable court fees and she adjourned the CMC and budget hearing to another date at which any relief from sanctions application would be heard. That date involved her moving another hearing which had been listed to deal with claims arising out of "asbestos-related diseases". At that hearing she refused the application for relief from sanctions. Amongst other things she said there was no evidence of particular prejudice to Mr Mitchell, she took account of the Master of the Rolls' speach on the Jackson Reforms which said that a tough approach was required so that justice could be done in the majority of cases. She said that the stricter approach under the Jackson reforms had been central to her approach. The Court of Appeal upheld her decisions. As to confining the claimant to court fees, it said that CPR 3.14 (confining the defaulting party to court fees) was not just directed to the case of a party who does not file a budget at all. Budgets being filed in time (7 days prior to the hearing) was important in order to enable the hearing to be conducted efficiently and for discussions to take place beforehand. The judge was therefore not wrong to apply the sanction. As to relief from sanctions, the Court of Appeal said that the provision in 3.14 "unless the court otherwise orders" involved the same considerations as relief from sanctions under CPR r.3.9. All the circumstances of the case should be taken into account but more weight should be given to the two factors listed in the new rule (directed at efficiency, proportionate cost and compliance with rules etc.). The Master of the Rolls cited and endorsed his speech on the Jackson Reforms about a more robust approach and taking account of the failures to comply on other court users (illustrated, as though almost by design, by vacation of the hearing of the asbestos-related claims). Guidance was given by the Court of Appeal: relief will only be granted where the default is "trivial" for example where there has been a failure of form rather than substance and where a deadline has been narrowly missed. Where it is not trivial the burden is on the defaulting party to persuade the court to grant relief and it will need a "good reason". Examples given were a document not being filed due to a party or solicitor suffering from a debilitating illness or an accident or where later developments in litigation show the period for compliance was unreasonable. Merely overlooking a deadline on account of work or otherwise was unlikely to be a good reason. A key point for practitioners in difficulties is that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief made after the event. The Court of Appeal found the perfect case to make their point. It involved a politician from one of the parties currently in government and which is presiding over the reduction of resources in the court system. The vacating of the asbestos-related claim illustrated the knock on effect of inefficiency and failure in one claim on other litigation. However the decision is extremely harsh: failure to comply by 7 days on the part of his solicitors has meant that Mr Mitchell will be unable to recover the costs of his action if he is successful. Those costs are estimated to be £506,425 - which suggests that the sanction is hardly proportionate to the breach. One wonders whether there is not in fact a much more appropriate sanction. Mr Mitchell's solicitors have said that they will carry on and that he will not be affected financially by the judgment. But in other cases it might well lead to a claim for professional negligence - a step which would clog up the court system with more complicated satellite litigation. Are judges really to second guess what impact a failure might have on the court system as a whole when for the most part they have little evidence to assist them with attaching weight to this factor?The Master of the Rolls said in his speech that "the achievement of justice means something different now" - the extremity of this decision begs the question whether one would still define it as "justice" or just a hard form of utilitarianism.  Photo courtesy of freefoto.com (Photographer: Ian Britton)