Wain v Gloucester County Council & Others

[2014] EWHC 1274 (TCC)

This case arose out of the first Case Management Conference (“CMC”) and costs management hearing. The fourth defendant was one day late in filing her costs budget, so that instead of having been served seven clear days before the hearing, it was in fact served six clear days before the hearing. The claimant took the point that the fourth defendant was late in serving her costs budget. If that was right then the potential consequence as set out in CPR rule 3.14 was that the fourth defendant would be treated as having filed a budget comprising only the applicable court fees.

Until receipt of the note for the CMC prepared and served at 4pm the day before the hearing, no-one on behalf of the fourth defendant had appreciated that the fourth defendant was in breach. Despite this, the issue was argued at the CMC. The claimants relied on the Mitchell case (see Issue 162) and argued that the fourth defendant’s breach was not a trivial breach, and that no good reason had been advanced for not serving her costs budget seven clear days before the hearing. In considering the meaning of “trivial” His Honour Judge Grant referred to the case of Aldington & 133 Others v Els International Lawyers LLP [2013] EWHC B29, where HHJ Jones QC drew attention to the interrelation between the nature of the non-compliance that was engaged, and the consequences of non-compliance.

The Judge here also referred to a paper delivered by Lord Justice Jackson at a conference held on 21 March 2014 by the Civil Justice Council where Jackson LJ wrote:

“Nevertheless parties should not be allowed to exploit trivial or insignificant breaches by their opponents, as Leggatt J stated in Summit Navigation Ltd & others v Generali Romania Asigurare Reasigurare SA (2014) EWHC 398 (Comm).”

In the circumstances here, His Honour Judge Grant came to the conclusion that the breach complained of was, when properly analysed, and having regard to all the circumstances of the case, a trivial breach. He concluded this for the following reasons:

(i) The delay was of one day in the context of a time period or frame of seven days.

(ii) That seven-day period, namely for filing or serving a costs budget, could usefully be compared with the three-day period for service of an application notice before its hearing: see CPR rule 23.7(1).

(iii) The claimant made it entirely plain that it had not suffered any prejudice by reason of the delay of one day.

(iv) The parties had been able to deal with the topic of costs management at the hearing, notwithstanding the fact that the fourth defendant served her costs budget with only six clear days rather than seven clear days before the hearing.

(v) Unlike the position in Mitchell, in this case no disruption to the court’s timetable had been caused by the delay on the part of the fourth defendant in serving her costs budget. The only additional burden placed upon the court was the need to take some time during today’s hearing to consider the point, and also for the Judge to spend some time both before the commencement of this hearing and during the short adjournment to prepare this ruling.

(vi) The Judge referred to and relied on the CA’s comments at paragraph 40 of the Mitchell judgment where, having stated that it might be useful to provide some guidance as to how to apply the new approach, the Master of the Rolls held:

“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 that an application is made promptly. The principle de minimis non curat lex, namely that 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.”

This was an instance where the relevant party, here the fourth defendant, had narrowly missed the deadline. Therefore whilst the fourth defendant could not put forward any good reason for the breach, it was in the view of the Judge a trivial one. This meant that the fourth defendant was entitled to rely upon her costs budget as served. It is a matter of some interest that the Judge ended his judgment by noting that:

“Because of the current general interest in these matters, evolving as they are, I will direct that a transcript of this ruling be made available to the parties at public expense.”

This decision does not, of course, mean that the courts are going to abandon the new strict approach to deadlines. There have been and continue to be a number of examples of the courts upholding that approach. However, this case is of interest because, on the specific facts outlined above, the TCC took what many will consider to be a proportionate and pragmatic approach to the issue.

That said, the best advice remains, make sure you are able to meet any deadlines, and if you are not, look to make an application for relief before the deadline runs out.

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