“This was not a case of a near miss. It was not a case of the budget being filed a day late, or indeed, seven days late. It was filed two weeks late, in the context of a time period of 21 days, during which actions are to be taken by the parties, as contemplated by the CPR.” 
“not only is the breach serious, but it is also significant. The effects of the late service of a costs budget have been such as to cause considerable inconvenience to this court and to other court users.” 
“there is no excuse for what has happened. It is quite clear that what happened was that the solicitor involved in this case, who would have been aware of the need for costs budgeting, not least because a costs draughtsman had already been instructed, took his eye off the ball. That regrettably does happen in life, but it does not amount to a good reason.” 
“when one comes onto the third stage, one is already in a position whereby there is a serious and significant breach and the reason why the failure occurred does not amount to a good reason. This is not one of those cases where there has been, for example, illness or other reasons which are a good reason for the delay that occurred. The reason is now known, but that reason is not a good one.” 
“No litigant, and certainly no city firm of solicitors, can be in any doubt about the consequences of a failure to comply with the rules as to costs budgeting under CPR 3.14.” 
“it is important to send a clear and consistent message that there should be compliance with rules, practice directions and orders of this court. That is necessary so that litigation can be conducted efficiently and so that court resources can be used and deployed most efficiently.” 
“This was a case where the deadline was not just missed. It was missed by a very substantial period of time. The breach was serious and significant. There is no good reason in terms of explanation for it, the application for relief was itself not made promptly, and when one considers all the circumstances of the case as part of the third stage, so as to deal justly with the application, I consider that it would be quite inappropriate to give relief from sanctions on the facts of this case.” 
“The failure to comply with the rules has prevented the litigation being conducted efficiently and at proportionate cost, there is a need to enforce compliance with the rules of the CPR in relation to costs budgeting, and on a consideration of all the circumstances relied upon it is not appropriate to grant relief from sanctions.” 
“whilst there may be cases where relief would obviously be granted, and no point is rightly taken, the rules, directions and orders of the court are there to be observed and for good reason. If there is a failure to comply, then an application for relief from sanctions should be made promptly, supported with evidence, after which it will be considered in accordance with CPR 3.9 and the established principles I have identified.” 
This was another case concerning the late filing of a costs budget.
In accordance with CPR rule 3.13(1)(b), the parties were required to file and serve costs budgets no later than 21 days before the CMC, on 27 September 2018.
The claimant filed and served its budget on 26 September 2018.
The defendant served their budget late, on 11 October 2018 at 4.32pm.
An exchange of emails followed in the course of which the claimant’s solicitors reserved their position as the late filing.
No application was made by the defendant seeking an ‘otherwise’ order under CPR 3.14.
As a consequence of the late service no budget discussion reports were filed, in breach of CPR 3.13(2).
The matter came before The Hon. Mr Justice Bryan for a costs and case management conference on 19 October 2018, at which the defendant sought relief from sanctions. The judge was critical of the lateness of the application, saying:
“The detailed skeleton lodged by Mr Dye on behalf of the defendants addressed case management issues and the costs budget of the claimant. No reference was made, nor any argument developed or foreshadowed, about an application for relief from sanctions. Still less was any evidence served or foreshadowed in relation to such an application…. The first I knew about the application for relief from sanctions and the supporting material was when this matter was called on…”
The Parties’ Respective Positions
In his witness statement, the defendants’ solicitor, Mr Buchmann, said:
“9. I first engaged with my firm’s internal cost lawyers in the week beginning 10 September 2018, I cannot recall the exact date but would have been one of the dates of 11 to 13 September 2018, regarding the preparation of the Defendants’ cost budget.
10. I then travelled on a lengthy work trip to Brazil and Argentina from 14 September, returning to London on 28 September 2018.
11. I returned to the office in London on 1 October 2018. By this time, I was already out of time. This was an oversight on my part whilst I was engaged in work abroad. I am sorry about that.
12. I accept that this may not be considered a good reason, but I assure the courts it arose from a genuine mistake on my part and was certainly not a deliberate disregard for the court rules.
13. However, our professional costs lawyer was used. All in all, over ten hours were spent in ensuring that the costs budget was prepared and presented in a detailed, considered, comprehensive and professional manner. She engaged with myself, an associate in my firm, and with counsel’s clerk in compiling the costs budget. A detailed and professional costs budget was produced and I served and filed it on 11 October 2018″.
Mr Buchmann went on to deal with the subsequent correspondence between the parties and a suggestion by the claimant that there had been a failure to engage on the defendants’ part:
“24. First, I do not consider it is fair to say that I “refused” to engage in the process of discussion.
25. Second the claimant’s solicitors did “engage” with us in reference to claimant’s costs budget, but they did have eight days before the CMC to engage with us on aspects of the defendants’ cost budget and the claimant’s solicitors did not make any points with respect to the substance of the defendants’ cost budget, although they could see from the cost budget its figures and the assumptions on which those figures had been prepared.
26. Third, albeit that the claimant’s solicitors reserve their client’s rights in respect of the late filing of the defendants’ cost budget, at no point prior to 11 October until 18 October did the claimant’s solicitors put forward any allegation of actual prejudice or raise any substantive objection to any calculation or assumptions, and it was only with the service of the claimant’s skeleton on the afternoon of 18 October 2018, less than 24 hours prior to the CMC hearing, that the claimant has raised the points that it has.
27. Fourth, since the claimant has been in possession of the defendants’ cost budget for 8 days, if the claimant’s solicitors did wish to engage in discussions as to costs budget, they did have an opportunity to do so and a Precedent R could indeed have been discussed or completed before the CMC. In this regard, whilst I am aware that the court rule 3.13(2) stipulates that a budget report (the parties are encouraged to use the Precedent R format) must be filed 7 days before the CMC, there was at least the opportunity to make progress by discussion.
28. Fifth, the claimant’s skeleton does not put in dispute any particular costs item(s) in the defendants’ costs budget, even by way of example”.
Mr Buchmann said that in the period between 11 October and 18 October the parties’ solicitors engaged constructively on other pertinent aspects of case progression without the late filing of the defendants’ costs budget becoming an impediment to progress the case. In particular, he said, the parties proceeded to engage constructively with respect to electronic disclosure and agreeing the list of issues and case memorandum for the CMC:
“30. I would hope that any further discussions between the parties, or any further hearing that may be required on the topic of costs (which is not conceded), whether in respect of the claimant’s or the defendants’ cost budgets, should not have any significant impact on progressing the case to, and achieving the completion of, the key milestones of disclosure, and witness and expert evidence in or up to trial, which both parties agree shall not be before 1 December 2019.
31: I submit that the effect of the delay is quite insignificant so as to have any serious or adverse impact upon proceedings and the procedural timetables. As such, the late filing of the defendants’ cost budget in this case will not disrupt the process of the litigation, nor lead to any disproportionate cost, and thus should not be regarded as a serious or significant breach of the rules.”
Further addressing the issue of prejudice, Mr Buchmann continued:
“32. Albeit that the claimant’s solicitors had reserved their client’s right with respect to the late filing of the defendants’ cost budget, at no point before the service of its skeleton has the claimant alleged, or particularised, any prejudice that it may have suffered.
33. The claimant alleges prejudice as arising from the late filing of the defence cost budget at paragraph 17.3.1 of the skeleton in which the claimant asserts, “The parties will have to waste time and money coming back to court for a further CMC to consider the defendants’ cost budget”. [Mr Buchmann’s emphasis]. However, I do say there has been some opportunity to engage since 11 October, but that advantage was not taken of this.
34. However, if it is necessary for the parties to return to court for a further CMC to consider the issue of the defendants’ costs budget as a result of the late filing of the defendants’ cost budget, I am authorised to state that my firm undertakes to cover the claimant’s costs, and indeed both parties costs, should the court require it, on an indemnity basis for any such further CMC, and such as may be thrown away at this CMC.
35. I hope the court may also take into account the cooperative and helpful approach which the defendants have taken to the overall agreement of directions, and to a practical solution to the disposal of the sesame seeds in exercising its discretion in this case.”
“36. As set out above: a) the claimant itself has not in reality engaged the defendants in relation to the defendants’ cost budget although it has sought to use the defendants’ figure to support its own figure; b) during the seven days after service of the cost budget and prior to the CMC, there was sufficient time for some engagement; c) the late filing of the defendants’ cost budget will not, in the context of this case, have real effect on the efficient progression of the proceedings and result in disproportionate cost; d) the late filing of the defendants’ cost budget has caused no substantial prejudice to the claimant, and to the effect that it may cause any financial prejudice, my firm’s undertaking is given in this regard.
37. I submit that, on my fair and proper balancing of all circumstances, and given the immense and far-reaching impact that it would have on the defendants, it would be disproportionate for the court to treat the defendants as having filed and served a cost budget comprising only the applicable court fees pursuant to CPR r 3.14 and I ask the court to order otherwise.”
The Three Stage Approach
Counsel for the defendant, Mr Dye, addressed the three stage approach identified in Denton v TH White Ltd  1 WLR 3926.
Mr Dye accepted that the defendants could not submit that there was a good reason for the breach, which occurred because of a foreign business trip by Hill Dickinson, but went on to submit:
a) The cost budget was late; but it was nevertheless served and it was filed.
b) This was not a contumacious refusal to engage with the cost process. The lateness was a mistake and an error, and not one by the defendants themselves, but by their solicitors.
c) In fact, despite the mistake, a huge amount of time, professionalism, and care had gone into the compilation of the defendants’ cost budget on the part of the solicitors. The cost budget was seven pages in length; it contained detailed costings, sometimes to the penny; it set out the assumptions on which it had been compiled; it was drawn up by a professional cost draughtswoman and was a serious, detailed, and considered piece of work.
d) It is important to bear in mind the need for compliance with rules and practice directions, but it is also important to make the penalty fit the crime, and the quality and intensity of the work that had gone into the preparation of the cost budget, convincingly evidenced that this was not a deliberate flouting of the rules.
e) The efforts the defendants had shown in the very broad agreement between the parties as to the directions of the CMC and the defendants’ willingness to do what they could to progress the litigation.
Seriousness and significance of the breach
Mr Dye submitted that the breach was not at the higher end of the scale of seriousness and significance. Whilst not trivial, he said, it ranked towards the lower end of the scale because:
a) the breach did not prevent or would not prevent the parties and the court from conducting the litigation (and other litigation). Although it shortened the period available for discussions, there was still time available for discussions. The claimant in fact examined the defendants’ cost budget and it had some ability in the time available to consider its assumptions and raise issues and the claimant did not raise questions about those assumptions, but in fact relied on the defendants’ cost budget in support of its own cost budget.
b) the breach did not imperil future hearing dates nor had it disrupted the conduct of the litigation. The claimant had not in fact indicated any issues with the defendants’ cost budget that it wished to raise. The default, which had little effect on the course of the proceedings, should not be regarded as serious and significant in the Denton case sense. This case is different to Lakhani [and another v Mahmud and others  1 WLR 3482]. Here there had been no intervening Xmas holiday in which the guilty party’s legal representative shut its office and made herself unavailable for discussions; nor had any dispute arisen over whether the defendants were in fact in breach which had disrupted the potential for agreement as to costs;
c) The breach had shortened the available period for discussion and agreement but, notwithstanding this, some part of the period was available and it was legitimate for a court to take into account not the time lost but also “the effective amount of time available” (Lakhani at ). At least some time was available, and the claimant did have an opportunity for consideration, and time which it could, as it did, make points, if it wished to do so.
d) The claimant had not alleged that the breach so prejudiced the claimant that it was unable to consider the defendants’ cost budget. Thus, while it could not be said that lateness had no effect, the degree of prejudice was not such that the claimant was disabled from dealing with the topic of cost management. The breach will have caused some impact on ease and convenience but discussions were not rendered impossible and the degree wais a relevant fact to be taken into account.
All the circumstances of the case
It was submitted that in all the circumstances it would be just, convenient and in accordance with the overriding objective to make an ‘otherwise’ order under CPR 3.14, because:
a) The defendants accepted once, on 11 October, that their cost budget was late. The claimant reserved its position but did not say more, and this application has been made as soon as the claimant had raised its objection.
b) This was not a case where there was a history of breaches of the rules, practice directions and court orders by the defendants which should be taken into account as relevant circumstances.
c) The defendants had in fact filed a cost budget. There was no wilful refusal to engage in the process.
d) Since the defendants’ cost budget was filed, there was a period of 7 days (5 working days) which could have been put to good use.
e) The claimant simply reserved its position once on 11 October and twice on 12 October, and did not seek to progress the cost aspect of the case, but it did rely on the defendants’ cost budget in support of its’ own budget, despite the late service. No other steps were taken, while time exhausted itself until the CMC.
f) That time was available for discussion and agreement. Parties are very often in the position where they receive late service of documents and both parties under these circumstances have a duty to assist the court in the overriding objective by seeking to progress the case, and that the claimant did not do so.
h) Relief was given in Azure (2 days late in 7 days period); relief was given in Murray v BAE Systems plc (unreported)  (Liverpool County Court) 17 February 2016 (7 days late owing to maladministration by the party’s legal representative in 21 day period).
i) There had been an error in the present case but it was that of Hill Dickinson LLP. They had accepted their responsibility and offered to make good, in costs, any costs thrown away by reason of the breach. That goes to mitigate the consequences of the breach.
j) While therefore this case was not trivial, the degree of seriousness and significance was not at the higher end of the scale. Taking into account the professional effort that went into the compilation of the defendants’ cost budget and their cooperation in other aspects of the litigation, it was towards the lower end of the scale.
k) So far as costs issues to do with the claimant’s cost budget were concerned, the only issues that arose were general ones, which were easily capable of being dealt with at the CMC. So far as the defendants’ cost budget was concerned, no issues had been raised by the claimant since the budget was served on 11 October 2018; if issues were raised they might be agreed; if issues were not raised and not agreed they may need to be dealt with on another occasion, but
i) to some extent this might have been avoided or minimised if the claimant had used the opportunity since 11 October to identify any issues that it had; and
ii) some time in the 2 hour time slot allocated for the CCMC may well have been saved by the very cooperative and commercial approach that the defendants had taken to agreement on directions and other aspects of the case, and the time it had saved by this cooperation could be allocated to deal with the cost budget. While, therefore, this may impact on the court’s time and diary and other litigants, that impact was mitigated by the prospective time saving and in all the circumstances the impact could be accommodated.
Seriousness and significance of the breach
Mr Walsh, for the claimant, submitted that the failure was serious in that the defendants’ budget was some two weeks late. It was not a case of a near miss.
He referred to two cases:
Lakhani, where the defendants’ solicitors filed a costs budget just one day late without reasonable excuse, the consequence of which was that a 45 minute hearing lasted half a day and was dominated by cost management issues, even though the parties had been able to discuss a budget in advance and only £3,000 was in dispute. The default rule in CPR 3.14 was applied by the judge and that was upheld on appeal.
Page v RGC Restaurants Ltd  EWHC 2688 QB, where Mr Justice Walker, again on an appeal, did not interfere with a decision of the judge below to refuse relief from sanction in relation to costs budgeting.
Mr Walsh made the point that Lakhani and Page are examples of time limits in relation to costs budgeting being missed by a very short period of time, whereas this case was one where the deadline was missed by a very considerable period.
He said that the failure was significant and was compounded by the fact that the defendants subsequently did not engage with budget discussions, so that discussions which ought to have happened well in advance of the CMC had not taken place.
All the circumstances of the case
In relation to all the circumstances of the case, Mr Walsh emphasised the need:
a) for litigation to be conducted efficiently and at proportionate cost, and
b) to enforce compliance with rules, practice directions and orders.
The defendants’ breach had, he said, prevented the efficient conduct of litigation, unless the default order applied, and the parties will have had to waste time and money coming back to the court for a further CCMC.
In terms of whether the default rule is proportionate to the breach, Mr Walsh submitted that the default is intended to be significant in order to encourage compliance. If the claimant succeeds at trial the sanction will be irrelevant. If the defendants succeeds, he said, to the extent that it was their legal team that was responsible for failing to file a costs budget on time, the defendants themselves ought not to be out of pocket.
Against this background, he said, the default action is not unduly harsh or disproportionate
Finally, Mr Walsh submitted that the claimant could not be accused of opportunism. On the contrary, it served its costs budget on time (which ought to have alerted to the defence that budgets were due), and, even after the late service of the defendants’ budget, the claimant’s solicitor attempted to discuss budgets, but to no avail.
THE HON MR JUSTICE BRYAN:
- Turning now to the application of the thre[e] stages in Denton v White, and bearing in mind how matters were developed and argued before me orally, Mr Dye, in the course of his oral submission, confirmed to me that he could not submit that the breach was anything other than serious.
The failure was, on any view, a serious breach. This was not a case of a near miss. It was not a case of the budget being filed a day late, or indeed, seven days late. It was filed two weeks late, in the context of a time period of 21 days, during which actions are to be taken by the parties, as contemplated by the CPR.
I have already drawn attention to CPR 3.13(2) and the fact that where a party files a costs budget then all the other parties, not being litigants in person, must file an agreed budget discussion report, either in Precedent R form or otherwise, not later than the seven days before the first case management conference.
- So, essentially, all the time that would normally have been taken up prior to the filing of an agreed budget discussion report was taken up by the non-provision of the costs budget. As Mr Walsh has put forward on behalf of the claimant and as Mr Dye does not gainsay on behalf of the defendants, the reality is that even today the claimant is not in a position to deal with the defendants’ costs budget, and so the entirety of the time period for agreeing costs budgets in advance of this CMC has been wasted.
- It does seem to me, as well, that
not only is the breach serious, but it is also significant. The effects of the late service of a costs budget have been such as to cause considerable inconvenience to this court and to other court users.
The consequence of the application only being made this morning and at a time when the court day was either about to commence or had already commenced, was that there was no opportunity for this court to consider that matter in advance. It also meant that this court had to rise to consider the witness statement and the supporting supplemental skeleton argument and in addition, it meant that approaching the entirety of the time allocated to the CMC has been spent addressing and giving judgment in relation to the application for relief from sanctions.
- In this regard, not only has it resulted in the wasting of time today before this court, but the inevitable consequence if relief was granted, would be that there would have to be another CCMC unless matters, of course, were agreed. That causes inconvenience to the court and to other court users. I will return in due course when I get to stage three to the undertakings which are proffered by the defendants, but
on any view it cannot be seriously suggested that this was anything other than a serious breach of the relevant rules, and one which I consider to be significant. It was not at the low end of the scale. It was a serious breach.
- Secondly, in terms of why the failure happened, as Mr Dye has realistically and candidly accepted in his oral submissions before me today, there is no good reason. All that can be said, at most, is that the breach was not deliberate, which would of course have been an aggravating factor, but
there is no excuse for what has happened. It is quite clear that what happened was that the solicitor involved in this case, who would have been aware of the need for costs budgeting, not least because a costs draughtsman had already been instructed, took his eye off the ball. That regrettably does happen in life, but it does not amount to a good reason.
It is clear that Mr Buchmann was away on business and I refer back to the passages that I have already quoted from both Mitchell and from Denton v White, that however hard pressed solicitors are, there must be compliance with the rules. It seems to me that there was no good reason.
when one comes onto the third stage, one is already in a position whereby there is a serious and significant breach and the reason why the failure occurred does not amount to a good reason. This is not one of those cases where there has been, for example, illness or other reasons which are a good reason for the delay that occurred. The reason is now known, but that reason is not a good one.
- Against that background, I turn to the third stage where I must consider all the circumstances of the case, including the factors in CPR 3.9(1) subparagraphs (a) and (b). I also bear well in mind the guidance and approach in Denton.
- In relation to (a) it is an important consideration that litigation should be conducted efficiently and at proportionate cost. The effects of the failure to file the costs budget in this case have meant that this litigation has not been conducted efficiently. The long and short of it is that only through the goodwill of this court will it be possible to have the CMC this afternoon, which will involve by the time of that CMC being concluded, a very considerable amount of court time in addition to the time that would otherwise have been expended. The consequences of this have an effect not only on the parties in this case, but on this court and other court users. So, that is a factor which weighs in the balance.
- In relation to subparagraph (b), as I have already identified, and as was not seriously disputed before me, this was a serious breach of a rule and this is a rule which is an important rule, which carries with it its own regime. By that, I mean
the default position under CPR 3.14 that unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees. No litigant, and certainly no city firm of solicitors, can be in any doubt about the consequences of a failure to comply with the rules as to costs budgeting under CPR 3.14.
- That brings me onto all the circumstances of the case. One relevant consideration is the circumstances in which the application for relief from sanctions was made. It is clear from the correspondence identified above that, almost immediately after they served their costs budget on the 11th October 2018, it was pointed out to the defendants’ solicitors that their costs budget was late. The appropriate and proper course at that point would have been to make a prompt application for relief from sanctions. Indeed, one of the points identified in Denton v White as a relevant circumstance to be weighed in the balance is the promptness of the application. In this case, there was not a prompt application for relief from sanctions. As I have identified, in fact what happened was initially a counter attack, which was misconceived, saying that the claimants had not served their costs budget in time, when they had done so.
- From 11 October onwards the claimants reserved their position. It will be recalled that Mr Colman in his letter on 11 October said at this stage: “I simply reserve my client’s position with regard to late service/filing” and that on 12 October in a further email at 9.06am, he said: “I continue to reserve my client’s rights in respect of late service/filing.” I consider that from 11 October onwards, Mr Buchmann must have been aware that the defendants’ costs budget was served late. It is suggested that the claimants could, it may even go so far as to be suggested the claimants should, have actually spelt out that at the CMC they would take the stance that the defendants’ costs budget should be limited applicable court fees.
- Whilst a party in the position of the claimant might have drawn attention to that, there is limited force, it seems to me, in the defendants’ submission in that regard, in circumstances where, as Mr Dye accepts, the defendants and their solicitors must be taken to be aware of the rules, the default position as set out at CPR 3.14 and the consequences that follow should no application for an otherwise order be made. It is not a particularly persuasive factor, therefore, that the stance that was taken, and strongly taken, in the claimant’s counsel’s skeleton was not foreshadowed prior to that. I do, however, bear in mind that the first time they gave express notice that the point would indeed be taken, was in the skeleton argument.
- I have to say though, that I am far from persuaded that following receipt of the claimant’s skeleton argument yesterday, the defendants acted promptly in relation to what then followed. I appreciate that it would have taken time for Mr Buchmann to assimilate and take instructions in relation to the defendants’ response and whether or not to apply for relief from sanctions (which I would have thought was an obvious thing that would have to be done). However, since that decision was taken, and I cannot believe that it would not have properly been taken by sometime yesterday, even if late yesterday, then I do consider in relation to promptness, that the court could at least have been forewarned about the fact that an application was being made and that evidence was being served or about to be served.
- I say that because at that stage it might still have been possible, for example, to reorganise the court day, so that there was an opportunity to consider the material in advance of the hearing. The hearing could, for example, have been pushed back to the afternoon, instead of which, the fait accompli that has occurred is that the morning, and in reality the entirety of the afternoon, will have been spent on this matter. I consider that this is a further factor going to the lack of promptness of the application.
- I turn then to the question of the undertaking which was offered by the defendants at paragraph 34 of Mr Buchmann’s witness statement. What is said as part of all the circumstances is that, as a consequence of the undertaking, the claimant will not suffer prejudice (or will at least not suffer as much prejudice as might otherwise have been the case) because the position can be remedied in costs. It is right, as Mr Walsh acknowledged before me, that, to an extent, that goes to mitigate or reduce the prejudice that his clients will suffer, but that is not to say that there is no prejudice that will be suffered by his clients. In addition, as I am going to come onto, there is also the position of the court and other litigants to be taken into consideration.
- So far as the position of the claimants is concerned, even if the undertaking were to be an indemnification on an indemnity basis in relation to today and any further hearing, that does not mean that no prejudice has been suffered by the claimant. Firstly, and this may not be a very significant point, there is, conceptually at least, a distinction between indemnity costs and solicitor and own client costs. Perhaps more importantly, I am told that the clients within the claimant have attended throughout today and no doubt that they would also wish to attend throughout any subsequent cost management hearing. That does result in prejudice to the claimant in terms of loss of business time which they could spend doing other things for their employer.
- That is just one aspect of it. Another aspect, and an important one which ties in and chimes with CPR 3.9(1)(a) and (b) is the position of the court and other court users. I have already identified the consequences which occurred as a result of the late application which has inevitably meant, if not derailing this CMC, that the CMC will have to take place later this afternoon and at a time when the court would otherwise have been engaged on other judicial matters. The consequence of that is not only to prejudice today in terms of court time and court resources, but also that scarce court resources would be used in relation to a subsequent cost management hearing, unless all matters were agreed. I consider that that is an important consideration.
- It is also said, by Mr Walsh on behalf of the Claimant, that if a party seeking relief from sanctions could, as it were, pay costs thrown away with the result that no prejudice is found to be suffered and, in all the circumstances of the case, it would then be just to grant relief, then that would denude the principle that underlies CPR 3.9 of all real effect. It is an important consideration that there should be compliance with rules, practice directions and orders, and although every case is to be considered on its own merits, and with regard to all the circumstances, as I have done in this case,
it is important to send a clear and consistent message that there should be compliance with rules, practice directions and orders of this court. That is necessary so that litigation can be conducted efficiently and so that court resources can be used and deployed most efficiently.
- I reject any suggestion, that the mere giving of the undertaking offered is some form of trump card or weighs so heavily in the weight of the balance of all the circumstances so as to outweigh all other factors. It is a matter that regard is to be had to, as I have done, as part of a consideration of all the circumstances.
- When I come to stand back, as I do, having looked at all the circumstances, and having given full weight and account to everything that was said by Mr Buchmann in his witness statement, and by Mr Dye in his supplemental skeleton and orally, and ask myself whether it is an appropriate case for relief from sanctions in all the circumstances of the case so as to enable me to deal justly with the application,
- I consider that this is a case where there has been a serious and significant breach of the order. Costs budgeting is an important part of case management. It is made clear by CPR 3.14 itself what the sanction is for failure to comply. Failing to comply with the provisions hinders agreement of costs budgets and cost management by the court, it causes delays, it causes inconvenience to the court and it causes inconvenience to the other party and other court users – it is also contrary to the need for litigation to be conducted efficiently and at proportionate cost.
This was a case where the deadline was not just missed. It was missed by a very substantial period of time. The breach was serious and significant. There is no good reason in terms of explanation for it, the application for relief was itself not made promptly, and when one considers all the circumstances of the case as part of the third stage, so as to deal justly with the application, I consider that it would be quite inappropriate to give relief from sanctions on the facts of this case.
- This is an archetypal case where it would not be appropriate to grant relief from sanctions. There was a serious breach without good reason, followed by a very late application to seek relief, and a consideration of all the circumstances demonstrates that it is not an appropriate case for relief. The failure to comply with the rules has prevented the litigation being conducted efficiently and at proportionate cost, there is a need to enforce compliance with the rules of the CPR in relation to costs budgeting, and on a consideration of all the circumstances relied upon it is not appropriate to grant relief from sanctions. Accordingly, and for all the reasons that I have given, I refuse to give relief from sanctions and direct that, pursuant to CPR 3.14, the defendants will be treated as having filed a budget comprising only the applicable court fees.
- I would only add this. It is important in all divisions of the High Court, not least the Business and Property Courts, that the parties comply with rules, practice directions and orders so that litigation can be conducted efficiently and at proportionate cost. It is also important that parties in commercial litigation before this court cooperate with each other in furtherance of the overriding objective. This means that
whilst there may be cases where relief would obviously be granted, and no point is rightly taken, the rules, directions and orders of the court are there to be observed and for good reason. If there is a failure to comply, then an application for relief from sanctions should be made promptly, supported with evidence, after which it will be considered in accordance with CPR 3.9 and the established principles I have identified.