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As the team staggers thankfully to the Finish Line of the year represented by the forthcoming Christmas holidays, we have paused to reflect on the loyalty and good humour of you, our readers, who have seen us through another stonking year. The Monday Morning Briefing has become the Dekagram, webinars have become dekinars, and Two have become One, in the form of Deka Chambers. We survived the combined hospitality of Clyde & Co and Leigh Day; we honoured the passing of Her Majesty the Queen at the book launch for Saggerson on Travel Law, during the course of which Matthew Chapman segued instantly from QC to KC; we enjoyed ourselves more than we should have done at the PEOPIL conference in Copenhagen and, no less glamorously, at the APIL conference in Marble Arch; and we unsuccessfully attempted to ruffle Simon Bunce’s feathers at ABTA events. And through it all you, our readers, have been our constant companions on our journey, the Morecambe to our Wise, the cracker to our nuts, the tinsel to our tree. So as we pause to reflect on the past year’s shenanigans, we thank you all for putting up with us and even encouraging us – and we look forward to tackling the new year together with renewed vim and gusto.
In the meantime, and perhaps appropriately festively for the time of year, we bring news of occasions on which the courts took a forgiving approach to procedural errors. We wouldn’t bank on the milk of human kindness continuing to flow through the court system in the dark days of January and February, however.
No More Mr Scrooge? Examples of Recent Judicial Benevolence
On no fewer than three occasions in the last couple of weeks the courts have confirmed what we already knew; judges are softies, really. The Court of Appeal kicked things off with a decision on filing of documents through the Electronic Working Pilot Scheme. The would-be Appellant in Microsoft Ireland Operations Limited v JH Enterprises Limited  EWCA Civ 1509 had used the scheme to e-file an appeal at 4.52pm on the last day of the period permitted for appealing, no fewer than 22 minutes after the close of the working day. The Respondent took the point that the appeal was filed out of time. The Court of Appeal disagreed. The Scheme had been introduced by CPRPD51O, which contained no provision limiting the time of day at which a document could be filed, and nothing in the provisions governing the traditional methods of filing contained any requirement for filing in office hours: the only limitation (at least in the Royal Courts of Justice) was the practical one of effecting delivery. When it was thought desirable that there should be such a limitation in the case of filing by fax and e-mail, which were not subject to the same practical limitation, an explicit requirement was introduced by CPRPD5A and CPRPD5B requiring filing in office hours.
By contrast, when PD51O introduced electronic filing, there were no explicit limitations on the permissible times of filing. Accordingly, no Rule or Practice Direction required filing in office hours in the case of electronic filing; and documents could be filed electronically out of office hours.
The same conclusion could be reached by reference to of CPRPD51O para.2.1, which states that ‘Electronic Working enables parties to issue proceedings and file documents online 24 hours a day every day all year round, including during out of normal Court office opening hours and on weekends and bank holidays, except …’.
That provision read more like a general statement of the 24-hour availability of electronic filing than a specific rule, and was not directed explicitly to the question of the time of day at which a time limit for filing expired. However, it contained an unqualified statement that under the Scheme parties could ‘issue proceedings … 24 hours a day …, including out of normal Court office operating hours’. In the absence of any provision to the contrary and subject to any different order in the particular case, that would reasonably be understood by litigants as a statement that such filing would be effective for all purposes, including where time expired on the day in question.
Accordingly, the drafters of PD51O adopted a different approach from the drafters of PD5A and PD5B; but that, so the Court of Appeal concluded, was not particularly surprising. There was no reason why electronic filing should be treated in the same way as filing by e-mail or fax; rather there was some reason why it should not be: the Scheme was intended not simply to supplement traditional methods of filing but, as para.2.1 declared, to replace them (subject to some limited exceptions) with a wholly new method.
Good news for the Appellant in this particular case, no doubt (though by the time the Court made its decision the point was moot, permission to appeal already having been refused by the Court of Appeal). But under the Law that appeals always take as much time as you’ve got, we anticipate many more late nights for those preparing to e-file appeals and other documents under the Scheme.
Baby it’s Coldunell Outside
In Coldunell Limited v Hotel Management International Limited  EWHC 3084 (TCC) the Claimant purported to serve a Part 36 offer by email, when the Defendant had not consented to service by email. The Defendant asserted that this invalidated the offer.
Following judgment on a dilapidations claim, the court had to determine the validity of the Claimant’s Part 36 offer and, if it was valid, the consequences of the Claimant having beaten that offer. The Claimant had been ordered to pay a proportion of the Defendant’s costs in earlier dilapidations proceedings between the parties concerning a hotel (the 2016 costs order). Those proceedings settled in June 2019. On 2nd July 2019, the Claimant made what it said was a Part 36 offer to settle upon payment by the Defendant of the sum of £495,000. According to the Defendant, that offer fell outside the scope of Part 36 for failure to comply with CPR36.2(3) because it was stated to take into account the Claimant’s liability for costs pursuant to the 2016 costs order, and therefore incorporated a matter that was not part of the claim. The Defendant also claimed that the offer was invalid for lack of proper service, and that even if there was a valid Part 36 offer it would be unjust to give the Claimant the benefit of it on the grounds that it had unreasonably refused a second mediation of the claim, had abandoned some £400,000 of its pleaded claim shortly before trial instead of doing so earlier, and was late in disclosing a report.
The judge held that the 2016 costs order was a matter outstanding between the parties at the time the offer was made and was a liability which both parties understood needed to be set off against any liability established by the Claimant in the instant proceedings. Accordingly, the Claimant’s liability under the 2016 costs order was an issue arising in the claim for the purposes of CPR36.2(3). In any event, there was nothing which expressly precluded the inclusion of terms in a Part 36 offer as long as the offer met the requirements of CPR36.5(2). Part 36.2(3) expressly preserved the ability to make an offer to settle in whatever way a party chose, albeit that if CPR36.5 was not complied with, the offer would not have the costs consequences provided for at CPR36.17. It was therefore open to the Claimant to include a term in the offer addressing its liability under the 2016 costs order as long as the offer complied with CPR36.5.
As for the service point, CPR 36.7(2) provided that a Part 36 offer was made ‘when it is served’. The claimant’s offer was served by email, but the defendant’s solicitors had not consented to such service. Under CPR3.10(a), a procedural error such as a failure to comply with a service rules did not in itself invalidate any step taken in the proceedings, unless the court so ordered. Accordingly, there was no need for the court to make an order. Even if there was, an order would be made under CPR3.10(b) dispensing with service and stating that the Claimant’s offer of 2nd July 2019 was validly made on that date. The key purpose of service of a Part 36 offer was to fix the date from which time started to run for acceptance of the offer, as well as to bring the offer to the offeree’s attention. There was no question that the offer had been communicated to the Defendant; nor as to when it was sent and received for the purposes of time starting to run. Neither was there any question of the Defendant being prejudiced by the fact that the offer was sent by email rather than post. There was no reason to invalidate the offer on the basis of defective service, therefore.
As a consequence, the Claimant had obtained a judgment that was significantly more advantageous to it than the sum it was willing to settle for in July 2019. Therefore, according to CPR36.17(4), it was entitled to interest on the judgment sum, indemnity costs from the end of the ‘relevant period’, interest on those costs and an additional amount capped at £75,000, being 10% of the first £500,000 awarded and 5% of any amount above that. The offer was a genuine attempt to settle before proceedings were issued, with a view to saving the considerable costs that would otherwise be incurred in litigation. The fact that the Claimant declined a second mediation was not unreasonable, given that the first mediation had failed a few months earlier. It was relevant that the Claimant had abandoned part of its claim shortly before trial, but that fact alone did not render it unjust to give the Claimant the benefit of the reliefs set out in CPR36.17(4). Accordingly, the consequences provided by CPR36.17(4) fell to be applied and their application was not unjust to the Defendant, who should have accepted the offer.
Comfort and Joy – but not for the Respondent
Soole J is a notoriously kindly judge. And in Ogunkoya v Mawson  12 WLUK 120 he confirmed his reputation. The Appellant applied to set aside an order refusing her application for an extension of time to appeal against various costs decisions. The Respondent had been granted summary judgment against the Appellant and by order dated 10th January 2020, she was required to pay the Respondent’s costs. The Respondent served a notice of commencement of the bill of costs for approximately £47,000. He then served an identical notice and that also went unanswered. A third notice was served with slight amendments. It listed the date of the order as 30th, not 10th, January and said that the costs came to approximately £46,000, not £47,000. A costs officer provisionally assessed the Respondent’s costs at approximately £33,000 plus the costs of the assessment. The Appellant challenged the assessment on the basis that the Respondent had commenced a detailed assessment three times, which led to her completing three points of dispute and she was therefore seriously prejudiced. In March 2021, the Appellant served submissions on the costs officer alleging that the Respondent’s conduct amounted to an abuse of process and that the detailed assessment should be struck out. In June 2021, a Deputy Master ruled in the Respondent’s favour, holding that the Respondent’s errors on date and cost were minor and did not constitute an abuse of process, and to apply to amend would have been a waste of costs. The Deputy Master summarily assessed costs in November 2021 and made a costs order in the Respondent’s favour in December, and refused the application for permission to appeal. The Appellant issued a notice of appeal against the June, November and December decisions. She acknowledged the errors in her notice namely filing by email instead of e-filing and then filing with the wrong court office. She accepted that she had to satisfy the Denton test in applying for relief from sanctions.
Soole J granted her application. He held that although the Appellant’s default had been serious and there was no good reason for it, taking into account all of the circumstances, it was appropriate to grant relief from sanctions and to grant an extension of time; the decision was therefore set aside.
As always in litigation, there are winners and losers in all of these cases. One person’s Father Christmas is another’s Grinch. We have had cause to comment on occasion over the last year or so that the civil justice system is supposed to be a system for doing justice; sometimes we’ve wondered whether it’s actually a system any more, and whether justice remains its purpose. So whether or not you agree with the conclusions reached in any or all of these instances, it is good to see judges trying to do justice, rather than merely mechanistically applying rules irrespective of the fairness of the result. The author would not suggest that this handful of cases represents any kind of sea-change in judicial approach; but as Baldrick reminds us, Christmas is a time for miracles…
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she was a member of the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists, and is a member of the Admiralty Court Users’ Committee. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.