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Carrying on with my tidy up, I came across a copy of the judgment of His Honour Judge Hamilton in Connor v Birmingham City Council (16 March 2005).
This concerned a case where a claimant had given notice that a claim was being funded by way of CFA in pre-proceedings correspondence but no notice, as required by the rules, was provided when proceeding were issued. No application for relief from sanctions was made before the detailed assessment and this was only sought orally at the hearing. The District Judge, as first instance, refused relief and disallowed the success fee. His Honour Judge Hamilton dismissed the appeal with the following words:
“It seems to me these are rules to be followed and if a judge decides that they must be followed, no criticism can be made of him for so deciding.”
With hindsight, it seems amazing that there used to be judges with such unenlightened views. However, this was a decision made under the old strict approach to relief from sanctions.
When Lord Justice Jackson undertook his major review he concluded that expecting parties and their solicitors to follow rules and court orders was generating unnecessary extra work for them and this led to disproportionate costs being incurred. Solicitors should be allowed to do what they wanted, when they wanted. A new relief from sanctions rule was required that would encourage a culture of non-compliance.
This approach was warmly endorsed by the senior judiciary in the run-up to implementation of the Jackson reforms with a number of high profile talks being given explaining that nobody likes goody two-shoes solicitors who slavishly follow the rules and court orders and then snitch to the court if their opponent does not do likewise in a cynical attempt to gain a windfall for their client. In future, those asking the courts to enforce the rules could expect to be slapped with adverse costs orders.
The Court of Appeal duly followed this new approach to relief from sanctions in the entirely consistent decisions of Henry, Mitchell and Denton (despite some troublemakers suggesting there might be some mixed signals being given out).
I think I’ve fairly summarised how we’ve got to where we currently are, although I might have become a bit confused over some of the finer details.