Jonathan and Helen Mott v Wayne and Syreeta Long
| Jurisdiction | England & Wales |
| Judge | HHJ Grant |
| Judgment Date | 02 August 2017 |
| Neutral Citation | [2017] EWHC 2130 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: C50BM031 |
| Date | 02 August 2017 |
[2017] EWHC 2130 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT
Court 19
Priory Courts
33 Bull Street
Birmingham
West Midlands
B4 6DS
HHJ David Grant
(sitting as a judge of the High Court)
Case No: C50BM031
Aidan Christie QC, instructed by DAC Beachcroft of Tricorn House, 51 – 53 Hagley Road, Birmingham B16 8TP appeared on behalf of the Applicant
Philip Byrne, instructed by Plexus Law of Joseph's Well, Hanover Walk, Leeds LS3 1AB, appeared on behalf of the Respondent
JUDGMENT (as approved)
This is an application for relief from sanction. The application notice is dated 21 July 2017 in which the defendants seek an order as follows:
'The defendant has permission to rely on the cost budget filed and served by letter dated 21 July 2017 or in the alternative the defendant be granted relief from sanctions and permitted to rely on the said costs budget'.
The application arises as a result of the defendant filing its costs budget some 10 days late.
The underlying facts are conveniently set out in the witness statement of Michael Hoskins who is the solicitor with conduct of the proceedings on behalf of the claimant. He states as follows:
'4. By the order dated 16 May 2017 the case management conference in these proceedings was listed for 10:30am on 2 August 2017.
5. Pursuant to CPR Rule 3.13 costs budgets were due to be filed not later than 21 days before the CMC.
6. On 11 July 2017, I wrote a letter to the defendants' solicitor…serving our client's cost budget. A copy of that letter is at page (80 in the application bundle). In the letter, I stated that cost budgets should be filed and served that day and I awaited receipt of the defendant's budget. I sent the letter by DX and email as I had previously corresponded with Plexus by email throughout the proceedings to date. The budget was filed at court on same day.
7. A week later on 18 July 2017, I had not received a response nor been served with the cost budget from the defendants. I wrote to Plexus (page 81) again highlighting this and that we considered an application for relief from sanctions would be required in the event of late provision of the cost budget…
8. (On 19 July 2017) I received an email from Plexus the following day (page 82) stating that the defendant's budget had been sent on 7 July and that a copy would follow the next day. The email also dealt with some issues regarding directions.
9. I was concerned that we had not received the cost budget if it had been posted 12 days previously and took it upon myself to enquire whether the court had received the same from the defendants or their solicitors. I called the court and was informed by Mrs Sue Thomas that no costs budget had been received from the defendants. I attach my attendance note (page 83).
I interpose to observe that when reading that attendance note it does not appear that it states expressly on its face that no cost budget had been received. Instead Mrs Thomas is recorded as having said, '…there is nothing outstanding on this', which expression could of course be open to a range of interpretation.
10. On 20 July 2017, I was copied in to Plexus's email to the court purporting to file the cost budget which was said to have been drafted on 6 July 2017 and served under a letter dated 7 July. The email is at page 84 and the accompanying cost budget is at page 85 (the first budget).
11. The first budget is indeed dated 6 July 2017, bears the names of the parties and the correct case reference for the matter and is signed by an associate partner of Plexus and contains the usual statement of truth. The first budget contains the following anomalies:
1. It is stated to be five pages long (the front sheet is footed page 1 of 5) but only the front page of the first budget was filed at court.
2. It records no disbursements incurred in relation to statements of case, though both the defence and amended defence were settled by counsel.
3. It relies on an assumption that the claimants will file medical evidence whereas this is a claim for property damage and no medical issues are pleaded.
12. In my subsequent email to Plexus I requested a copy of the covering letter said to have been sent on 7 July 2017 (page 86). Plexus sent me a copy of the covering letter in … Word format by email (pages 87 & 88), though that letter was in fact dated 9 July 2017, which fell on a Sunday. I highlighted this and the anomalies I have noted in my further email to Plexus later that day on 20 July (page 89). I again reiterated my view that an application for relief from sanctions would be required as the defendants had not properly served and exchanged a cost budget within the timescale required under the CPR..'
In her witness statement, Sarah Louise Wright, an associate partner of Plexus Law with conduct of the matter on behalf of the defendant, stated as follows:
'2. I have noted the claimant's correspondence noting that they had not received the claimant's cost budget which I believed had been served on 7 July 2017…
3. I note that the cost budget was due to be served by 11 July 2017 and on 6 July I started to draft the document.
4. Unfortunately, at this time we experienced IT difficulties which appear to follow implementation of new printing systems.
5. The difficulties including saving Word documents and printing those documents and there were issues around the system crashing during the course of working on documents.
6. Notwithstanding this I believe that the defendants' cost budget had been completed saved and printed correctly.
7. My working practice is to send documents to the printer when they are complete and towards the end of the day, to release the documents from the printer and spend the latter part of the day signing letters and documents.
8. When reviewing the file to prepare for the CCMC and consider the claimant's solicitor's correspondence I noted that they raised issues with the fact they had not received our cost budget.
9. I emailed the budget which had been saved to the system to the claimant's solicitor and the court on 20 July, noting that this had been filed and served by letter dated 7 July 2017. I was then advised that neither the claimant's solicitor nor the court had received the budget.
10. By email dated 20 July 2017 received at 17.47, the claimant's solicitor noted that the budget I had sent consisted of only one page and made reference to reliance on medical evidence.
11. On receipt of this mail on 21 July 2017 I reviewed the document and noted that it was not the final format of document I had drafted and in fact the final version had not saved to the computer system.
12. This leads me to a position where I cannot now be certain or satisfied that the budget was filed and served as previously thought and I have to accept that it is likely that the documents were not saved correctly and/or not printed'.
It is not necessary for present purposes to read further from that witness statement.
Those therefore are the underlying facts, and I now turn to consider the first of the three stages identified by the Court of Appeal in Denton v TH White Ltd [2014] EWCA Civ 906, namely whether the breach has been serious or significant. Giving the judgment of the majority Lord Dyson, then Master of the Rolls, held as follows, under the heading 'The first stage':
'26. Triviality is not part of the test described in the rule. It is a useful concept in the context of the first stage because it requires the judge to focus on the question whether a breach is serious or significant. In Mitchell itself, the court also used the words "minor" …and "insignificant" … It seems that the word "trivial" has given rise to some difficulty. For example, it has given rise to arguments as to whether a substantial delay in complying with the terms of a rule or order which has no effect on the efficient running of the litigation is or is not to be regarded as trivial. Such semantic disputes do not promote the conduct of litigation efficiently and at proportionate cost. In these circumstances, we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant…We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance. We recognise that the concepts of seriousness and significance are not hard-edged and that there are degrees of seriousness and significance, but we hope that, assisted by the guidance given in this decision and its application in individual cases over time, courts will deal with these applications in a consistent manner.
27. The assessment of the seriousness or significance of the breach should not, initially at least, involve a consideration of other unrelated failures that may have occurred in the past. At the first stage, the court should concentrate on an assessment of the seriousness and significance of the very breach in respect of which relief from sanctions is sought. We accept that the court may wish to take into account, as one of the relevant circumstances of the case, the defaulter's previous conduct in the litigation…We consider that this is better done at the third stage… rather than as part of the assessment of seriousness or significance of the breach'.
In his written submissions, on behalf of the defendants, Mr Byrne submitted as follows:
'11. In the present matter, the defendants' budget was filed and served 10 days late but ahead of the present hearing.
12. Accordingly it is respectfully submitted that the delay in the service of the...
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