Legal Update: a warning against taking “unreasonable advantage” of late filing

17 July 2015

In the recent case of VIRIDOR WASTE MANAGEMENT LTD v VEOLIA ES LTD (2015), a factually modest unjust enrichment claim concerning non-taxable waste developed into a legal battle over one of the most topical issues in the legal profession: the late filing of pleadings in post-Mitchell civil proceedings.

The parties consented to a 28-day extension for the service of the particulars of claim, giving a deadline of 14 January 2015. Although the Claimant filed its particulars of claim in accordance with the court order, due to an administrative error, the particulars were sent one day late by second class post and arrived at the Defendant’s solicitors' offices on 15 January 2015.

The Defendant complained that service was not effective as second class post is an unrecognised method pursuant to the CPR service rules. The Claimant then re-effected service by hand, email and first class post on 19 January 2015. The Defendant refused to consent to the Claimant's application for an extension of time for service of particulars, and applied to strike-out the application.

The Defendant submitted that any delay, be it hours or minutes, was significant and serious, as a generous period had been permitted for the service of the particulars of claim.

In deciding whether to grant relief from sanctions, the Court outlined three stages to consider: 

  1. the identification and assessment of the seriousness and significance of the breach;
  2. consideration of the reasons for the default, and
  3. an evaluation of all of the circumstances of the case, in particular the two factors in CPR r.3.9(1): the need (i) for litigation to be conducted efficiently and at proportionate cost; (ii) and to enforce compliance with rules, practice directions and orders.

The Court held that it was not necessary to resolve the date on which service was finally effected; what mattered was that the particulars of claim had been in the Defendants solicitors' hands by lunchtime on 15 January 2015, which had only been a few hours after the time permitted for service. Although there were formal rules to be complied with, ultimately the purpose was to bring the relevant document to the attention of the other party where it knew that procedural steps had been taken. In assessing the seriousness and significance of default, it was important to focus on the rule's purpose.
In reaching its decision the court highlighted the following factors:

  • It was clear that no delay or inefficiency had been caused by the delay in filing
  • The filing of the particulars had no effect on limitation; it was the issue of the claim form that was relevant for these purposes
  • The default was not one which had any real impact on the course of litigation

The court concluded that the Defendant had taken unreasonable advantage of the Claimant’s default in the hope of obtaining a windfall strike-out, when it was obvious that relief from sanctions was appropriate, and had caused further delay by refusing to consent. As a consequence, the Court found that it was appropriate to award the Claimant its costs on an indemnity basis.

This decision should act as a warning to parties against making overly hasty applications to the Court where a party has defaulted in its compliance with orders, particularly in instances where the non-compliance has had seemingly little or no effect on the course of the proceedings in question.

Any applications which do not conform to the overriding objectives of the court may result in heavy cost sanctions being awarded against the applicant and parties should apply some common sense to technical breaches or defaults.

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