One of the avowed aims of amending CPR 3.9 was to make the judge’s job simpler. The case of McTear -v- Englehard  demonstrates that it has precisely the opposite effect.
THE JACKSON REPORT ON THE ISSUE OF SANCTIONS
In the Final Report Lord Jackson recommended that CPR 3.9 be amended. This part of the report is instructive. At 6.7 of the Final Report (p.397) he discusses the need for a change to CPR 3.9.
“Proposed rule change.
I recommend that sub-paragraphs (a) to (i) of CPR rule 3.9 be repealed and replaced by:
“(a) the requirement that litigation should be conducted efficiently and at
proportionate cost; and
(b) the interests of justice in the particular case.”
This form of words does not preclude the court taking into account all of the matters listed in the current paragraphs (a) to (i). However, it simplifies the rule and avoids the need for judges to embark upon a lengthy recitation of factors. It also signals the change of balance which I am advocating.”
The eagle eyed will observe that the draft rule is much different to the version currently in the CPR. In particular the “interests of justice” is not present. (This will form the subject of a future post). However the central point is that the initial aim, at least, was to simplify the decision making process and prevent the need for the judge to work through all the criteria that were in the old CPR 3.9.
WHAT HAPPENS IN A CPR 3.9 APPLICATION NOW?
The relatively simple 3.9 criteria have now been replaced with a whole mass of case law. Consider the passage from the judgment dealing with the cases cited.
“2. The present case is another in which the implications of Mitchell fall to be considered.
3. I was referred to the subsequent decisions of the Court of Appeal in Durrant v Chief Constable of Avon and Somerset Constabulary  EWCA Civ 1624 (dated 17 December 2013) and Thevarajah v Riordan  EWCA Civ 14 (dated 16 January 2014). I was also referred to the recent decisions at first instance of Hamblen J in Lakatamia Shipping Co Ltd v Nobu Su  EWHC 275 (Comm) (dated 13 February 2014), Globe J in Chartwell Estate Agents Ltd v Fergies Properties SA  EWHC 438 (QB) (dated 18 February 2014), Leggatt J in Summit Navigation Ltd v General Romania Asigurare Reasigurare  EWHC 398 (Comm) (dated 21 February 2014) and Andrew Smith J in Associated Electrical Industries Ltd v Alstom UK (a private limited company)  EWHC 430 (Comm) (dated 24 February 2014).
4. It was drawn to my attention that in Durrant and Thevarajah the Court of Appeal had reversed decisions of judges at first instance to grant relief from sanctions. Further, that at  in the Associated Electrical case Andrew Smith J had concluded that, although he considered that as between the parties this was a disproportionate response and unjust, the emphasis that the Court of Appeal has given in Mitchell to enforcement of the CPR in order to encourage procedural discipline had driven him to conclude that he should grant the defendant’s application to strike out the claim form and refuse the claimant’s application for an extension of time. I was informed that permission to appeal to the Court of Appeal has been granted in Chartwell and that permission to appeal to the Supreme Court is being sought in Thevarajah.”
CASE LAW HAS REPLACED THE SIMPLE PRINCIPLES OF CPR 3.9
Any advocate arguing a CPR 3.9 application now simply has to take the court to a whole tranche of case law. This is hardly simplification. Given the number of appeals planned and pending it is unlikely to change for the foreseeable future.
MORE ABOUT McTEAR TO COME
The decision in McTear itself is of some importance and will be considered later this week. For the time being it is worthwhile noting that the situation in relation to the exercise of the 3.9 criteria has become more, rather than less, complex.