Sir Rupert Jackson used the anniversary of his eponymous reforms to declare ‘Litigation is a process, not an Eleusinian.’ Some quickly scrabbled for Wikipedia and others shook their head in wonderment at whether Sir Rupert inhabited the same world, let alone the same century, as those working under his new regime.
However, despite his somewhat anachronistic referencing, Sir Rupert makes a very good point. Barely a week goes by without some fresh outrage at an injustice heaped on a Party who had failed to comply with an Order and now suffers the dire consequences. Far from being a dystopian New World the regulations surrounding Relief from Sanctions are not shrouded in mystery and the outrages are, somewhat, hyperbolic.
The two cases in point are Durrant v Chief Constable of Avon & Somerset Police  EWHC 1984 and McTear v Englehard  EWHC 722 . Both cases involve the late filing of witness statements and in the case of the latter by 55 minutes.
It is worth carefully scrutinising what Richards LJ had to say at Para.48 of Durrant:
48. The position concerning the two witness statements that were served only just out of time is less clear-cut. The judgment in Mitchell states, at para 40:
“It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided than an application is made promptly. The principle ‘de minimis non curat lex’ (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms ….”
As we have said, the non-compliance in relation to the two statements, taken by itself, might be characterised as trivial, as an instance where “the party has narrowly missed the deadline imposed by the order”. The non-compliance becomes more significant, however, when it is seen against the background of the failure to comply with Lang J’s earlier order, and the fact that Mitting J, in extending that deadline, had seen fit to specify the sanction for non-compliance.
It seems fairly clear from this that the refusal to grant Relief from Sanctions was not based on one singular event but looking at the conduct of the Chief Constable in the round. Moreover, the Chief Constable’s application for relief was not made until over two months later and, when you factor in the Claimant being a litigant in person and the overriding objective at CPR 1.1, it is plainly obvious why the relief was not granted.
Turning to McTear and more outrage as a witness statement is filed 55 minutes late. On its own this may well seem a trivial breach. But look again at the words of Richard LJ when a breach is ‘…seen against the background of failure to comply…’ The Defendant in McTear had filed its witness statement 55 minutes late with 700 pages of documents attached, some of which had not been previously disclosed. The Judge, rightly, pointed out at Para. 72 that to allow the relief ‘…would be contrary to both the letter and the spirit of the overriding objective, and fly in the face of reason and common sense.’ What we are looking at here is not arbitrary punishment, or a challenge of Herculean proportion to obtain relief from sanction against a cruel and unforgiving regime, but an application of regulations to ensure equality of arms.
Conduct is not a question of singular events but conduct as a whole. For those who are organised, trivial, human error breaches should be nothing to worry about. For those who continue to disregard Court orders and the CPR Directions the cases of Durrant and McTear will feel like the Labour of the Augean Stables.