The human cost of administrative failure in UK courts

Court error and party default are not the same thing

Most writing on this subject blurs two situations that the court treats very differently, so it is worth separating them at the outset.

The first is party default: your firm missed the deadline. That is what happened in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, where the claimant’s solicitors failed to file a costs budget in time and the claimant was limited to recovering court fees only. It is also, in substance, what happened in Barton v Wright Hassall LLP [2018] UKSC 12, where a litigant in person attempted service by email without establishing that the defendant’s solicitors would accept it, and the claim failed on service rather than on its merits. The Supreme Court accepted the difficulties faced by litigants in person while holding that the rules apply to all parties.

The second is court error: the court office lost the filing, processed it late, listed a hearing without regard to the dates supplied, or failed to send an order. That is a different problem with a different answer, and neither Mitchell nor Barton is a case about it.

Where does court error fit in the Denton test?

At stage two, and only rarely as a complete answer on its own.

Denton v TH White Ltd [2014] EWCA Civ 906 replaced the strict approach that had grown out of Mitchell with a structured three-stage exercise under CPR 3.9. The court identifies and assesses the seriousness and significance of the breach; considers why it occurred; and then evaluates all the circumstances so as to deal justly with the application, including the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance. Judgment.

Stage two is where administrative failure by the court becomes relevant. A good reason for a breach is generally something outside the party’s control, which is precisely what a court processing failure is. Illness and genuine procedural misunderstanding not caused by carelessness fall into the same category; simple oversight and a diary that was not checked do not.

But stage two is not determinative. The Court of Appeal has confirmed that the Denton test applies broadly across non-compliance, including applications to set aside default judgment under CPR 13.3, and that the discretion at stage three does the heavy lifting. Relief is frequently granted at stage three even where the breach was serious and there was no good reason for it, and refused at stage three despite a sympathetic explanation. Establishing that the court caused the problem improves the position; it does not close the argument.

Why promptness matters more than fault

Because delay in applying for relief has defeated applications that would otherwise have succeeded, even where the underlying breach was modest.

The Court of Appeal has observed in post-Denton guidance that debarring a party from defending a substantial claim because it was somewhat late filing a pre-trial checklist would not be required by rule 3.9. What decided that case was not the breach but the defendant’s lack of promptness in applying for relief, because the consequence of the delay was the loss of a fixed trial date. At stage three there was, as the court put it, really only one answer.

The lesson is uncomfortable but useful. A party that discovers a court error and applies immediately is in a strong position. A party that discovers the same error, waits to see whether it matters, and then applies has converted the court’s mistake into its own.

What evidence do you need?

Proof of what the court did and when, gathered at the time rather than reconstructed later.

An application for relief must be supported by evidence, and the party in default carries the burden. Asserting that the court office lost a filing is not the same as demonstrating it. In practice that means:

• Electronic filing receipts and submission confirmations, retained rather than deleted once the case moves on
• A contemporaneous note of every telephone call to the court office, with the date, the name of the person spoken to and what they said
• Correspondence confirming in writing what was agreed or explained by telephone, sent the same day
• The dates to avoid actually supplied, and the covering document that supplied them
• A record of when the error was discovered, which supports the promptness argument at stage three

Courts have accepted administrative error on the part of the court as a material consideration where it is established. In one reported instance, a trial was listed without regard to the dates to avoid that a party had supplied, and the court’s own error was a key consideration in the applications that followed. What made that argument available was that the dates had been supplied on the record.

Why litigants in person are worst affected

Because the entire mechanism above depends on knowing it exists.

Represented parties identify errors, chase missing documents, know that relief from sanctions is available and understand that applying promptly matters. Unrepresented parties rely far more heavily on the court’s administration being accurate in the first place, and are less likely to recognise a processing failure as something they can and must act on quickly.

Barton illustrates the limit of judicial sympathy here. The Supreme Court acknowledged the difficulties faced by litigants in person and still held that the rules apply equally. Judgment. Allowance for lack of representation does not extend to disapplying the rules, which means an administrative error that a represented party would neutralise in a week can end an unrepresented party’s claim.

For firms, there is a practical point buried in this. Where the other side is unrepresented and a court error has affected them, taking tactical advantage of it is exactly the conduct Denton warned against, and the court has costs powers to respond.

What does this cost the system?

More applications, more hearings and more appeals, all of which consume the capacity that caused the problem.

Every processing failure that produces a default generates an application for relief from sanctions, which requires evidence, a hearing and a judgment. Some produce appeals on procedural fairness. The judicial time spent resolving them is time not spent on substantive work, which lengthens lists and increases the pressure on the administration that failed in the first place.

HM Courts and Tribunals Service publishes information on its operation and performance, and the Ministry of Justice publishes court statistics that give the outline of capacity pressures. HMCTS. Firms working in the affected jurisdictions will have their own view of where the pinch points are, and that operational knowledge is worth recording rather than carrying informally.