Burton v Cranfield Delta Whiskey Group – Relief from sanctions

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The recent decision of Costs Judge Master Rowley, in Burton v Cranfield Delta Whiskey Group, granting relief from sanctions, is an unusual one.

The breach occurred pre-1 April 2013. Litigation Futures reported that the reasoning behind the decision was that Master Rowley said that the message sent by the Court of Appeal in Mitchell was it:

“seems to me to be aimed at current and future practice, rather than being a stick to beat parties with for errors for which relief, rightly or wrongly, would routinely have been granted had an application been made at the time”.

It was accepted that the breach was due to human error, not normally a sufficient excuse under Mitchell for relief, but the Master held:

“However, it seems to me that the reasoning in Mitchell is very much aimed at human errors occurring after April 2013, rather than 15 months or so before.”

Taken from first principles there appear to be two reasons for distinguishing between breaches that occur pre and post April.

Firstly, where the consequences of the breach (in terms of prejudice to the other side, delay to litigation, etc) are more serious where the breach has occurred after April.

Secondly, on the basis that parties had proper notice of the likely consequences of a breach after April but did not before. The argument here is that it would be unfair to penalise parties for pre-April breaches in circumstances where pre-April there was a more relaxed approach to breaches and parties would have expected relief to be granted. As such, parties would, not unreasonably, have been less assiduous in ensuring 100% compliance pre-April and it would therefore be inappropriate to penalise them, in effect, retrospectively. However, since April parties have been on notice as to the likely consequences of breaches. As such, they cannot complain if the sanction bites without relief for a post-April breach.

There seems nothing in the change in approach since April that means the consequences of a breach have become more serious where they occur post-April. I can therefore only conclude that just the second potential factor might be relevant, and it certainly seems to be this which Master Rowley focused on.

But there are two problems with this. First, it would have been perfectly possible when the new relief from sanctions test was introduced for the transitional provisions to be drafted such that the relevant test to apply was governed by the date of the breach. That could have been done, but it was not. The transitional provision determines that the relevant date is the date of the application:

“The amendments made by … these Rules do not apply to applications made before 1 April 2013 for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order.”

Given that is the relevant transitional provision, I struggle to see how a different trigger date can be applied by the courts. Of course, parties knew the new rules were coming into force before 1 April 2013 and had the opportunity to get their houses in order before that date. If a breach was indentified, and in most cases it would be possible to identify a breach by undertaking a proper review of the file (although possibly not on the facts of this case), an application could have been made before 1 April 2013 and the party thereby benefited from the old test.

Secondly, it must be remembered that in the Mitchell case the sanction that was imposed was not one contained in the pilot scheme that the case was proceeding under. The judge imposed a sanction not provided for by the rules. The sanction was not one that the defaulting party was on notice of or, I would suggest, one that would have been anticipated. That was the surprising element of the Court of Appeal’s decision. Nevertheless, the Court of Appeal was not impressed by the “lack of notice” argument.

In light of the transitional provision and the Mitchell judgment it is difficult to see why the date of the breach should impact on whether relief is granted.

Interest on costs

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CPR 44.2(6)(g) states:

“The orders which the court may make under this rule include an order that a party must pay interest on costs from or until a certain date, including a date before judgment.”

However, the Senior Courts Costs Office Guide 2013 correctly advises:

“The power to order interest to run from a date other than the date of judgment has, as at the date of preparing this guide, been found to be ultra vires in the county court until the Treasury takes certain steps to validate it. For the time being, in county court cases, interest on costs (other than the costs of assessment) will always run from the date of judgment.”

Costs reserved

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Of the different types of order the court can make in relation to interim matters is one for “costs reserved”. PD 44 para.4.2 explains the effects of such an order:

“The decision about costs is deferred to a later occasion, but if no later order is made the costs will be costs in the case.”

I have always understood this to mean that where such an order is made but this is overlooked when the matter settles, whether at trial or by agreement, then tough luck for the party who is ultimately unsuccessful. The costs of that interim matter are treated as costs of the claim overall. Cook on Costs states:

“It is worth pointing out that an order for ‘costs reserved’ becomes an order for ‘costs in the case’, if there is no later determination of where responsibility for those costs lies.”

It is not uncommon for this issue to be overlooked, particularly where counsel is not properly briefed as to the existence of such orders before a final hearing.

However, a recent decision from the Court of Appeal suggests that this analysis is not necessarily correct.

In Taylor v Burton & Anor [2014] EWCA Civ 21 an interim order was made permitting the claimant to amend their particulars of claim, permitting the service of an amended defence and permitting the defendant to serve a further statements of fact dealing with any new factual issues arising in the amended case. The judge ordered that the “costs of and occasioned by the amendment are reserved to the trial judge”.

At trial the defendant was ordered to pay the claimants’ costs of the action on the standard basis. This had the effect of also picking up the costs of the amendment reserved to the trial judge. The Court of Appeal proceeded on the basis that the trial judge was unaware of this as he had not been referred to the fact that those costs had been reserved to him and did not refer in his costs judgment to the fact that they had.

The Court of Appeal’s conclusion was:

“In my view, the judge was innocently in error in not dealing separately with this head of costs. I say ‘innocently’ because he was not told that this head of costs had been reserved to him. He ought to have been told and he ought then to have considered separately how to deal with them. He might have decided simply to include them as the costs to which the Burtons were entitled as part of their costs of the claim. He might have thought it appropriate to make a different order. We do not know. As, however, he did not address his mind to how to deal with them, we consider that he fell into error and that, in consequence, we can and should exercise our own discretion as to what order to make in respect of the reserved costs.”

The defendant was a litigant in person representing himself at the trial but this does not appear as part of the reasoning for the decision and there is nothing in the judgment to suggest the position would have been different if the defendant had been represented.

This judgment appears to place the onus on the trial judge to check whether there are any interim costs orders reserved to him and gives virtually an automatic right of appeal if the judge does not do this. It must be said that whatever the fairness of the decision, resolving such issues by way of appeal appears a very cumbersome and expensive route. Why not just allow the matter to be remitted to the trial judge for consideration? It also begs the question as to when the wording of PD 44 para.4.2: “if no later order is made the costs will be costs in the case” actually applies. This decision suggests there must be a formal judicial decision on the point before there is any finality.