Justice and Fairness Prevail over Post-Jackson Strictness

Prinz NagalinghamBy Prinz Nagalingam, Senior Solicitor Advocate


Sir David Eady, sitting in the High Court, has delivered a decision on appeal which offers further hope that common sense can prevail in the post-Jackson era.

The facts of the underlying case arose from a pretty standard RTA claim. Proceedings had been issued in 2012. The subsequent Defence denied liability, and sought to blame the Claimant for the accident. Upon allocation, disclosure lists were ordered by February 2013 with lay witness evidence to follow by April 2013. In November 2013, the Defendant had sought to amend their Defence to formally plead contributory negligence.

At first instance the District Judge had refused permission to amend the defence.

In referencing the decisions in Mitchell and Durrant (cases which previously set a hardline approach post implementation of the Jackson reforms), Sir Eady sought to adopt a different approach and found that the Court was able to exercise a degree of flexibility in this case because a changing of the defence would waste no Court resources and would not inconvenience any other Court users.

Sir Eady said that fairness and justice do not need to be “compromised merely for the sake of discipline or the marking of disapproval”.  He acknowledged that the first instance Judge was doing his best to apply post-Jackson principles in line with earlier decisions, but that “in examining the trees he ultimately failed to see the wood”.

Sir Eady commented “I believe that justice and fairness required that the amendment should have been allowed so that the ‘real dispute’ between the parties could be adjudicated upon”. The district judge’s original decision meant the Defendant would lose the opportunity of reducing the scale of his liability by an appropriate percentage, and ultimately the High Court ruled there was no good reason to deny the Defendant such opportunity.

Our comments

We see this decision as a further example of encouragement for Judges to pause and take a step back before making draconian decisions which would not serve the interests of justice and fairness. It is abundantly clear that the fear factor imposed by Jackson has had an impressive effect on case management and reducing delays. However, as the dust settles it seems the Courts are increasingly open to looking at the facts of an individual scenario where delay has occurred or amendment required, rather than applying a ‘one size fits all’ to each any every case.

In this particular case (Groarke –v- Fontaine [2014] EWHC 1679 (QB)), the factors to note in particular are the references to “justice and fairness” as well as the effect of any decision on Court resources and other Court users.