James Perry, Director Technical, explores a recent Court of Appeal decision which focusses on the importance of meeting court deadlines.
We’ve all heard of Mitchell (the legal case that is, not the brothers Grimm from EastEnders!) and the case of Denton which took the sting out of Mitchell’s tail. If not, these were cases which basically focussed on how we should not miss court deadlines. Indeed, after Denton it seemed that all was well again, that the pain inflicted by Mitchell had begun to wane a little and we all could breathe a small sigh of relief that being great at practising the law actually meant nothing if you missed a court deadline! We were all rather pleased that recent case law had said that actually taking small points for the sake of being argumentative was not the thing to do and that you would be lambasted by the court if you chose to do it. Time-wasters would not be tolerated and for the first time in a while we liked the look of what the courts were saying.
Unfortunately, the pendulum has swung back slightly the other way of late, although if you read on you will appreciate why. The decision of Oak Cash and Carry Ltd v British Gas Trading Ltd  EWCA Civ 153 interprets the previously familiar message that missing a court deadline is going to lead to trouble. Again, it seems the only way not to get into bother is to take the simple approach - hit all your court deadlines all of the time, no matter what the situation is, and you’ll be alright.
In this case, a claimant failed to file a pre-trial checklist until two days after the deadline. However, because they had missed the original deadline and then missed a final chance to file (under the terms of what is known as an Unless Order) the Court of Appeal applied the Denton test and found that a legal representative missing a deadline because of ongoing complications for his wife regarding her pregnancy was not a good enough reason to miss a judicial deadline! Sounds a bit harsh doesn’t it. However, Lord Justice Jackson stated that the breach started when the first order was missed and had to be set in the context of the draconian measure to draw an Unless Order, which does make a lot of sense. The Judge focussed on the fact that there had already been a final warning. The fact that the claimant was in breach of two orders (including an Unless Order) made it “significant and serious” under the Denton test criteria. It was also said in the High Court appeal before it reached Lord Justice Jackson, by Mrs Justice McGowan, that someone competent within a large firm should have supervised the trainee who was left with the file. She criticised the firm for not maintaining efficient conduct of the case.
The result was that the claim was lost by the claimant and the defendant walked away with a six-figure Judgment!
This case yet again illustrates that once you are locked in legal proceedings you really have to stick to the rules of the game and cannot deviate from them unless you are prepared to take a risk. If you do bumble along in the hope that the case will settle quickly and it doesn’t, then you must still hit your deadlines to continue on to the next stage in legal proceedings. If you don’t have a clear strategy in place and understand that when you reach certain points costs have to be incurred (because the court forces you to incur them) then you run the risk of the whole exercise becoming a complete waste of time and money. As lawyers and clients alike, we cannot just go through the motions of taking legal action any more, moving from one-step to the next in a zombie-like state. We have to really think about what we are doing and actively deal with as much as possible in the early stages of a case to resolve it so we can exhaust settlement discussions before the costs of our claims strangle our chances of doing a deal.