Wain v Glos CC and Others
| Jurisdiction | England & Wales |
| Judge | His Honour Judge David Grant |
| Judgment Date | 02 April 2014 |
| Neutral Citation | [2014] EWHC 1274 (TCC) |
| Date | 02 April 2014 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Claim No. 3BM5 0053 |
[2014] EWHC 1274 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY & CONSTRUCTION COURT
Priory Courts
33 Bull Street
Birmingham
B4 6DS
His Honour Judge David Grant
Sitting as a High court Judge
Claim No. 3BM5 0053
Counsel for the Claimant: Mr Woolgar
Counsel for the First Defendant: Mr Horne
Counsel for the Fourth Defendant: Mr Brown
The Second and Third Defendants did not attend and were not represented
THE JUDGE: This is the first CMC and costs management hearing in this case. The fourth defendant was one day late in filing her costs budget, so that instead of having been served seven clear days before today's hearing, it was in fact served six clear days before this hearing.
The claimants are represented by Mr Woolgar of counsel, the fourth defendant by Mr Brown of counsel. Also in attendance is Mr Horne of counsel who appears for the first defendant, but who takes no part in this particular aspect of today's hearing. On behalf of the claimants, Mr Woolgar takes the point that the fourth defendants was late in serving her costs budget, and if he is right in that then of course the potential consequence is set out in CPR rule 3.14, namely, the fourth defendant will be treated as having filed a budget comprising only the applicable court fees. That point was taken in the note for today's hearing prepared yesterday by the claimant's solicitors: see paragraphs 24 to 30 of that note.
In his oral submissions today, Mr Woolgar observed that the fourth defendant had not in fact made an application for relief from sanction. In his oral submissions on behalf of the fourth defendant, Mr Brown submitted that although the fourth defendant's costs budget had been prepared and was dated 25 th March 2014, it was in fact served the following day. Mr Brown further informed me that no-one on behalf of the fourth defendant had appreciated that the fourth defendant was in breach until they received the claimants' note prepared for this hearing, which was served a little after 4pm yesterday. As it happened that was unfortunately just after the solicitor who has the care and conduct of this matter on behalf of the fourth defendant had left the office, she having the care of a young child after that time. Mr Brown invited me to entertain an application for relief from sanctions made orally today. Mr Woolgar indicated that if such an application was made orally he would be in a position to deal with it today. In those circumstances I indicated that I would be prepared to hear Mr Brown's oral application for relief from sanctions, which he then made.
The background to the matter can be stated shortly. The case concerns the activities of various defendants in the years preceding the two flooding incidents which occurred at the claimant's property in June and July of 2007. The proceedings were in fact served on the fourth defendant on 11 th September 2013, right at the end of the perceived limitation period: see the letter at tab 25/ page 121 of the CMC file. As the claimants accept and acknowledge, these proceedings were served on the fourth defendant without the claimants having complied with the pre-action protocol: see their case management information sheet (page 128 of the CMC file). There is something, therefore, of a palpable distinction to be drawn between the general position of the claimants, who have had many years to prepare their case, and that of the fourth defendant, who has only recently become involved in these proceedings.
The claimants refer to and rely on the recent decision of the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, and submit that the fourth defendant's breach is not a trivial breach, and that no good reason has been advanced by the fourth defendant for not serving her costs budget seven clear days before today's hearing, rather than the six clear days which were in fact achieved.
The Court of Appeal did not define what is meant by the adjective "trivial" in Mitchell. It may well be said that there was no need to do so, the word having a plain meaning. In his judgment in Aldington & 133 Others v Els International Lawyers LLP [2013] EWHC B29, His Honour Judge Oliver Jones QC, sitting as a judge of the High Court at the Birmingham Civil Justice Centre, drew attention to the interrelation between the nature of the non-compliance which was engaged, and the consequences of non-compliance: see paragraph 32 of his judgment.
It is perhaps also appropriate to refer to a short part of the paper delivered by Lord Justice Jackson at the recent conference held on 21 st March 2014 by the Civil Justice Council on the impact of the Jackson reforms. In paragraph 3.9 of that paper, having referred to the decision of the Court of Appeal in Mitchell, Jackson LJ wrote: "Nevertheless...
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