So it was that Jackson LJ, striding forth like Alexander the Great in front of the Phrygians to solve the Gordian Knot, handed down his decision in Hallam Estates v Baker [2014] EWCA Civ 661. Possibly, Sir Rupert mused upon the words of Shakespeare in Henry V;
‘Turn him to any cause of policy,
The Gordian Knot of it he will unloose,
Familiar as his garter’
Jackson LJ in his decision noted ‘…by avoiding the need for a contested application they are furthering the overriding objective and also saving costs for the benefit of their own client.’ These indeed are fine words. However, they are certainly not radical, nor are they original. Woolf LJ makes this poignant remark in his Access to Justice at Chapter 7 paragraph 5:
‘Virtually all my recommendations are designed at least in part to tackle the problem of costs. They intend to:
(a) Reduce the scale of costs by controlling what is required of the parties in the conduct of proceedings…’
Is this not what Jackson LJ’s reforms intended to do? It would appear that to date the reforms have driven up costs and vastly increased the satellite litigation he so hoped to diminish. This is in no small part due to CPR 3.8 and 3.9. However, it would appear that the Jackson reforms are being refined in light of the refreshing decision in Chartwell Estate Agents Limited v Fergies Properties SA [2014] EWHC 438. This decision very much prefigured the Hallam Estates decision in that it indicated a return, by the Judiciary, to a more sensible and rational approach to relief from sanction in the Post-Jackson era.
It is worth considering the sage words of Davis LJ at paragraph 62 in Chartwell:
‘It is also to be emphasised that the courts in considering applications under CPR 3.9 do not and should not have as their sole objective a display of judicial musculature. The objective under CPR 3.9 is to achieve a just result, having regard not simply to the interests of the parties but also to the wider interests of justice…enforcing compliance is not an end in itself. In the well-known words of Lord Justice Bowen: “The courts do not exist for the sake of discipline.”
It would appear that we are now seeing those precious few in the Judiciary who are willing to apply some common-sense, to analyse the facts as presented and not just flex their judicial muscles. Mitchell and Durant will still stand for those foolish enough to flout the Orders of the Court but for those Defendants wishing to use the trump card of CPR 3.8 it appears that this has somewhat lost its venom.
Davies LJ went on to say at paragraph 63:
‘…the Court of Appeal will not lightly interfere with a case management decision and will support robust and fair case management decisions should not be taken as applying, when CPR 3.9 is in point, only to decisions where relief from sanction has been refused. It does not. It likewise applies to robust case management decisions where relief from sanction has been granted. If parties understand this then at least satellite interlocutory appeals should be avoided and at all events get no encouragement from the appellate court.’
Jackson LJ’s decision in Hallam can certainly be appreciated for its attempt to inject some clarity and room for manoeuver. However, the shining light in the Jackson reforms is not the author himself but a Judiciary who can carefully analyse the facts, apply the rules with subtlety rather than brute force. After all have the Judiciary not been striving since Access to Justice to bring about a fairer more balanced costs regime?