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Mitchell Re-visited or Re-written?

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Plebgate may be a dim and distant memory, but the outcome of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1526 (Mitchell) has not been forgotten. Mitchell has resulted in a significant amount of satellite litigation increasing the demand for the Courts resources and raising concerns about the Courts inconsistent approach.

As a result of Mitchell, litigating parties were unable to agree any extensions to the Court timetable forcing them to apply to Court for permission or relief from sanction. 

Mitchell made it clear that all parties must endeavor to comply with Court deadlines and that parties should seek an extension before the deadline expires rather than relying on an application for relief from sanctions. Mitchell confirmed that the Court will usually grant relief if the non-compliance is trivial i.e. it's a failure of form not substance, provided an application is made promptly. If it's not regarded as trivial the applicant will have to persuade the Court that there is a good reason for the failure in order to obtain relief.

Following Mitchell some Courts have adopted a strict approach for example in Patterson v Spencer [2014] EWHC 1878 (Ch) where the Court refused to give a defendant relief from sanction for failing to comply with an unless order which resulted in the appeal being struck out. On the face of it this decision is surprising particularly as the defendant was a litigant in person, however the judgment makes it clear that there was a long history of non-compliance on the part of the defendant which caused delay, wasted Court time and increased costs.

However, in other cases the Courts have adopted a more pragmatic approach as demonstrated by the Court of Appeal in Chartwell Estate Agents Limited v Fergies Properties SA [2014] EWCA Civ 506. In that case the Court granted the Claimant relief from sanctions for failing to serve witness statements within the required timescales. The Court held that to refuse relief would have ended the claim which would have been too severe a consequence when considering all the circumstances of the case. It was undoubtedly important that in that case both parties were in default and that the trial window was unaffected.

The Court of Appeal has now provided further guidance whilst hearing three cases together over 2 days in June.  By way of reminder, the Court of Appeal had to consider the following decisions:

In Denton v T H White Limited and others (23 December 2013) (unreported) the Court granted relief for a Claimant that served six further witness statements one month before a 10 day trial resulting in the trial being adjourned. The Judge stated that if the evidence was not permitted it would lead to a ‘ridiculous trial'.

In Decadent Vapours Ltd v Bevan and others (unreported 18 February 2014) the request for relief from sanction was refused and the claim was struck out as a result of a failure to pay the Court fee as required under the terms of an unless order. The Court was not persuaded that this was a trivial failure particularly, because the solicitor made a decision to rely upon a conversation with a member of Court staff and sent the cheque by post rather than incurring the costs of personally attending Court.

In Utilise TDS v Davies [2014] EWHC 834 (Ch) the Court refused an application for relief where a costs budget was filed at Court 45 minutes late. Whilst the breach was trivial on its own when a further breach of the same Court order was taken in to account and no good reason was provided the breaches were not considered to be trivial. At the first appeal the Judge held that there was no good reason to interfere with the District Judge's case management discretion, but leave was granted for a second appeal.

Whilst the Court of Appeal maintains that the guidance of Mitchell is "substantially sound" it has set out a 3 stage test:

  1. Identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order. If the breach is neither serious nor significant, the Court is unlikely to spend much time on the second and third stages.  The use of trivial should not be used in the future and at this first stage the Court should only consider the specific breach being considered.
  2. Consider why the default occurred. Is there a good reason?
  3. Evaluate all the circumstances of the case, so as to enable the Court to deal justly with the application including factors (a) and (b) under Rule 3.9 of the CPR i.e. for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and order. The Court has confirmed that those factors are not of paramount importance as has been interpreted from Mitchell, however they are of particular importance when considering all the circumstances.

In applying the test to the three cases, the Court of Appeal allowed all three appeals thereby refusing relief from sanction in Denton and ordering the trial to be re-listed as soon as possible and setting aside the orders in Decadent Vapours and Utilise TDS.

Whilst Lord Justice Jackson agreed with the judgment in most parts he disagreed with the Master of the Rolls in respect of the third stage. In his opinion 3.9 (a) and (b) should not be given particular importance, but should be considered by the Court together with all the circumstances of the case.

This guidance needs to be read in conjunction with Rule 3.8(4) of the Civil Procedure Rules 1998, which was introduced on 5 June 2014, which is being referred to as the buffer rule. This allows parties to agree between themselves, an extension of up to 28 days to deadlines, unless the Court orders otherwise, thereby removing the need to apply to Court. It is important to note that this can only be done by prior written agreement and provided the agreement does not put a hearing date at risk.

It is hoped that this further guidance will minimise the need for satellite litigation.  The Court made it very clear that they will be ready to penalise opportunism and will impose heavy costs sanctions on parties who behave unreasonably in refusing to agree extensions or unreasonably oppose applications for relief.

The Court accepted that it was necessary for them to re-visit Mitchell and without doubt this further guidance is welcome, but would the Court accept that Mitchell has been now re-written? We very much doubt that!

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