Mitchell: No excuse for a 'common sense' blind spot

19 February 2014

A recent decision by Mr Justice Stuart-Smith in the TCC in The Governor & Company of The Bank of Ireland -v- Philip Park Partnership illustrates that it is possible to push strict emphasis on CPR compliance too far.

The judiciary has not lost its collective head and common sense in the overall interests of justice ought still to prevail against errors of 'form rather than substance'.

In this case, the Claimant had exchanged and filed a Template H costs budget that did not include a full Statement of Truth.  The Defendant argued that the Claimant had therefore failed to file and exchange a costs budget by the requisite date and that the Claimant should be unable to recover its costs.  In response to these arguments, the Claimant applied for relief from sanctions on the basis: (i) that a fresh Template H costs budget had been filed containing a properly worded statement of truth; (ii) the initial error was the result of wording provided by a costs draftsman and (iii) it was clear that the initial costs budget was signed and dated to indicate that the intention was to signify that the budget was true and accurate.

The Judge rejected the Defendant's argument that there was no reasonable excuse for the failure and, therefore, no relief from sanction should be granted.  The costs budget did contain an 'irregularity', but CPR3.14 did not apply because a costs budget had been provided (albeit technically incomplete).  Therefore, the costs budget as originally exchanged should stand.  In any event, the Judge made clear that, even if he was wrong on this point, he would have granted relief from sanction.  Mitchell set down that relief will usually be granted if the non-compliance is trivial or where the failure is of form rather than substance.  In this instance, whilst the inclusion of a statement of truth in a document is clearly an important matter, nevertheless the latter was clearly the case.

Whilst the current tide of judicial guidance is in the direction of strict compliance with the CPR, heralding a 'toughening up' of sanctions for non-compliance, this decision provides an eminently sensible check to that flow.  The Courts will not penalise unduly a party for technical non-compliance where the error is one of form only.  This sensible decision will hopefully dissuade parties from taking contrived technical points that have a 'blind spot' to common sense.

The Governor & Company of The Bank of Ireland -v- Philip Park Partnership

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