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25 February 2014

Mitchell Mayhem: a review of the landscape 3 months on

The Court of Appeal’s decision is Mitchell is now 3 months old and has been described by some as a ‘total game changer’. It has arguably changed the landscape of civil litigation.

In Mitchell, Lord Dyson stated that ‘we hope that our decision will send out a clear message. If it does we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and court orders’

Three months on what is the impact of the judgment? Have District Judges approached relief from sanctions applications with the robustness that the Court of Appeal advocated? Are all relief from sanction applications now doomed to failure?

In Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624 the Court of Appeal took a very early opportunity to apply its own guidance in Mitchell and overturned the High Court's decision to grant relief from sanctions for late service of witness statements. It emphasised that decisions under CPR 3.9 that fail to follow the robust approach laid down in Mitchell would commit an error of principle and should not be allowed to stand.

In the immediate aftermath of Mitchell and Durrant civil litigators seem to have been overcome with excitement, eagerness, and blind enthusiasm. There has been a sense of ‘Mitchell Mayhem’.

I now rarely read a set of instructions that don’t make mention of Mitchell in some way.

While in many cases practitioners are fairly and properly relying upon the judgment it seems that some practitioners have perhaps misunderstood the intention of the Court of Appeal and more importantly the scope of the judgment.

It has been thought by some that Mitchell will provide a cast iron guarantee that applications for relief from sanction (whatever the circumstances) will fail. Furthermore, it seems that Mitchell is now being relied upon in more wide ranging scenarios.

Mitchell was concerned with an application for relief from sanction. However, in the last 3 months I have seen reliance upon Mitchell in resistance of applications to set aside default judgment, during applications to extend time to serve medical evidence, and in support of applications to strike out the claim for filing trial bundles late, a witness statement 2 days late, and crucial medical evidence a week late (among other trivial breaches of the rules).

I should add that in one recent case I successfully had the Claimants claims struck out on the morning of trial for filing an incomplete trial bundle late.

Has this simply been taken too far? Have practitioners lost the ability to apply common sense and has the judgment now seen the end of compromise and cooperation?

Understandably many practitioners don’t want to be seen as negligent for failing to take the Mitchell point BUT does a line need to be drawn in the sand?

In  Summit Navigation Ltd -v- Generalia Romonia [2014] EWHC 398 (Comm) Mr Justice Legatt was critical of a party who took a ‘Mitchell’ point in relation to the late provision of security. A bond of security, due at 4.00 pm on the 5th December was not obtained until 10.00 am on the 6th December.

The following introduction to the judgment makes interesting reading, and advocates a more sensible approach;

“The decision of the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2013] 6 Costs LR 1008, on the effect of the new CPR 3.9, has rightly been described as a “game changer”: see Michael Wilson & Partners Ltd v Sinclair [2013] EWCA Civ 1732, per Lewison LJ. It is important for litigants to understand, however, how the rules of the game have been changed and how they have not. The defendants in this case have sought to rely on Mitchell to turn to their tactical advantage a short delay by the claimants in providing security for costs which in itself had no material impact on the efficient conduct of the litigation. They have argued that the consequence of the claimants’ default should be that the action remains permanently stayed.

Unlike the claimants’ default itself, the defendants’ response to it has had a very serious impact on the litigation. The whole timetable for the proceedings has been derailed, significant costs have been incurred and court time has been wasted to the detriment of other court users. In other words, the reliance placed on Mitchell in this case has had the very consequences which the new approach enunciated by the Court of Appeal in Mitchell is intended to avoid.

In the hope of discouraging other litigants from making similar arguments to those made by the defendants in this case, with similar disruptive consequences, I said at the end of the hearing that I would put in writing my reasons for the orders which I then made. This judgment gives those reasons.”

In Summitt Leggatt J formed the view that ‘the case falls squarely within the category of case where the non-compliance with a court order can properly be regarded as “trivial”.

With the greatest respect to the Court of Appeal, I should prefer to use a different adjective, since the whole thrust of the new approach is to inculcate a culture of compliance with rules and orders and to dispel an attitude which trivialises even “minor” breaches. I would therefore prefer to say that the default in this case was not material.

The judgment in Mitchell undoubtedly allows for judicial discretion. On any application for relief the Court must first consider whether the non-compliance can properly be regarded as ‘trivial’ It seems to me that the long-term implications of Mitchell will turn upon how the lower courts choose to define ‘trivial’.

There is clearly scope for inconsistency of approach across the judiciary and it may be that in due course the Court of Appeal will come to provide a clearer definition.

Certainly, further guidance as to what can properly be regarded as trivial would help to avoid unreasonable reliance upon Mitchell going forward.

However, the decision in Summit sends out a cautionary note to practitioners and may dampen the initial enthusiasm for Mitchell.

While the landscape has undoubtedly changed and litigators will now find it far more difficult to obtain relief from sanctions, practitioners must still apply their common sense, and consider whether their stance is reasonable in all the circumstances; otherwise judicial criticism (and potentially adverse costs) may follow.

SARAH WATTERS

23rd February 2014

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