Court rules are (not) made to be broken

Posted by Rachel Gimson on
Jagdish Lakhani & anor v Ibrahim Sheikh Abadullah Mahmud & ors (2017)

Litigants can't expect much latitude from the court when breaking procedural rules.

The Andrew Mitchell "plebgate" defamation case in 2013 was well known for the political furore.  Within legal circles, however, the case was a stark example of the court losing patience with people, and their lawyers, ignoring the rules.

In that case Mr Mitchell's solicitor had failed to provide a cost budget by the deadline and as a result faced the automatic consequence that he was prevented from recovering any of his legal costs, even if he was successful.

Since then the harsh consequences of a "minor" breach had been softened a little by the court in practice but the recent High Court appeal decision in Mahmud et al v Lakhani is a reminder that rules are still rules and must be followed.

The dispute in this case concerns parking spaces and a right of way. The parties were required to provide cost budgets 21 days before a hearing.  The successful Claimants (Mr and Mrs Lakhani) for whom Blake Morgan acted, did so; the Defendants (Mr Mahmud et al) did not - they were a day late. 

At the hearing the Defendants sought relief from the automatic penalty against recovery of their costs. They explained their tardiness was a mistaken calculation, rather than a deliberate intention. They were unsuccessful and appealed the decision.

The High Court on appeal confirmed that the judge had been entitled to take relevant facts into account when deciding if the breach was serious, and that although one day may be excusable in certain circumstances it was not a deciding factor.  Issues such as conduct, including the budget not having been started in good time and failure to accept promptly there had been an error, weighed against the Defendants.

As a result the Defendants are still able to oppose the claim; however they do so in the knowledge that even if successful in defeating it they will not be able to recover their substantial costs.

The lesson to be learnt from the decision is that it is very important that parties to proceedings understand the court rules and ensure that they comply.  Any delay can lead to important consequences which may not be excused by the court.  Each case is assessed on its own facts therefore relying on the sympathy and discretion of the Court is ill-advised.

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Rachel is an experienced litigation Solicitor who advises on all aspects of Property Litigation disputes.

Rachel Gimson
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