More, Post Mitchell
In January 2014 the parties in The Governor and Company of the Bank of Ireland & Anor v Philip Pank Partnership exchanged costs budgets, but the claimant failed to include a full statement of truth. Whilst the document was signed and dated by a partner it had the words “[Statement of Truth]”. The defendant therefore contended that the claimant required relief from sanction under 3.14 of the CPR.
PD22 specifies that the following statement of truth is required
“The costs stated to have been incurred do not exceed the costs which my client is liable to pay in respect of such work. The future costs stated in the budget are a proper estimate of the reasonable and proportionate costs which my client will incur in this litigation.”
Battle commenced on the 12.02.2014 before the Honourable Mr Justice Stuart-Smith in the Technical and Construction Court.
The defendant’s stance is found in paragraph 7 of the Judgment; there was a breach, relief is required, there is no excuse and therefore relief should not be granted.
Adopting a common sense approach, Mr Justice Stuart-Smith found the Defendant’s submissions to “have no merit, technical or otherwise.”
The learned Judge went on to hold, inter alia, that CPR 3.13 requires budgets to be filed and exchanged and that 3.14 provides for a sanction in the event that a party fails to provide a budget. Obviously, a budget had been filed and exchanged and 3.14 did not provide for a sanction for failure to comply in all respects with PD3E.
Whilst is was held that relief from sanction was not required, some further general guidance was given at paragraph 12 onward; inter alia, if the non-compliance can properly be regarded as trivial, the Court will usually grant relief; and, second, relief will usually be granted where there has been failure of form rather than substance.
Reference was also made to Lord Dyson MR’s lecture in the Jackson Implementation Programme.
“Relief against sanction is still available if the circumstances require it. The Court’s new no-nonsense approach does not make compliance an end in itself which is superior to doing justice in any case: it has not changed the CPR to tripwires for the unwary or incompetent, nor turned them into weapons for the unwary or incompetent, not turned them into weapons for use by unscrupulous parties.”
After Mitchell, its nice to see some sense at last!