In Mitchell v News Group Newspapers Ltd 2013 the Client or the Solicitor potentially lost half a million pounds by a retrospectively imposed sanction for failing to lodge a document at Court within 4 days of the Court’s direction to do so, the failure not being excused by the intervening weekend! A robust decision! It was and remains harsh and unfair even though we would all hope that in similar circumstances we would have made a better attempt at compliance, how many other firms would have struggled to produce a half million pound costs budget within 4 days including a weekend?
In Denton etc. 4th July 2014 the Court of Appeal have in effect confirmed Mitchell but have provided further guidance, which has been said to change the emphasis from the interests of the administration of justice generally and compliance with rules (the factors a) and b) in Rule 3.9 as referred to in Denton) towards the interests of justice in the case, by stating that the former factors are not paramount (as stated in Mitchell) but are to be given ‘particular’ weight and all the other circumstances of the case including the interests of justice are also relevant.
Will this have any effect? The 3 stage test, which has been suggested does not give any confidence that a failure to lodge a document due to an oversight (no good reason), which had an impact in the case or the administration of justice (therefore significant) has a realistic chance of getting relief from sanctions, even if the opposite party will be laughing all the way to the Bank, at the unexpected windfall. The judiciary have been told to use ‘nuances’ and to judge each case on its own facts but if they still have to place particular weight on a) the importance of the efficient and proportionate conduct of litigation and b) compliance with rules and orders, will they not still uphold the rules and orders despite producing an unjust result?
In Mitchell the Judge had been particularly harsh in considering the significance of the breach when the time given to comply had been so unreasonable, bearing in mind the retrospective sanction she had in mind. True justice could have been achieved by imposing some other sanction, but she chose the full loss of costs recovery, applying CPR 3.14 by way of analogy. The Judge was also wrong in my view to state that the sanction in Rule 3.14 was mandatory, when it specifically says in the Rule that it applies, unless the Court otherwise orders. It was also unfair to use in her reasoning for refusing relief from sanctions that the breach had caused inconvenience to the Court and the administration of justice, because to grant relief from sanctions had necessitated a hearing taking up judicial time, which could have been used on other cases. If that reasoning were to be applied universally to cases where there had been a significant breach and there was no good reason, no one would ever get relief from sanctions in these cases unless the hearing could take place when the Judge would otherwise have been sitting idle! Although I sympathise with the asbestos Claimants whose Case Management cases could not be heard by the Mitchell Judge the logic of this reasoning completely defies me!
In Denton the Court of Appeal made it clear that Mitchell was right. In doing so it said that it was a case management decision and there were no grounds to interfere with it. With respect the two things are not entirely the same. Did this mean anything? It would be nice to conclude that the Court of Appeal had distanced itself from Mitchell but instead it has quoted the decision extensively and Denton etc. is really Mitchell revisited. Lord Justice Jackson was the dissenting minority in respect of the emphasis to be placed on the 2 factors a) and b) mentioned in Rule 3.9, which at least shows consistency, as in his Report he had favoured a specific reference to the interests of justice of the case in factor b) and the Rules Committee had rejected his draft preferring the specific reference to compliance with Rules and Orders. However, even Lord Jackson took the trouble to confirm that he did not disagree with the Mitchell decision, albeit on the basis that there were no grounds to interfere with it.
If you have not read Mitchell and Denton they are worth reading as there has been a slight shift in emphasis but Mitchell still holds sway. I believe that Mitchell amounted to a gross failure of our legal system to produce a fair and just decision, as demonstrated by the first 4 lines of this article! The position remains unsatisfactory. The Court of Appeal appears to want to retain Mitchell to support the foundations of the new post Jackson Reforms. It can be seen to have recognised some unfairness in decisions being made based upon Mitchell, but could be said to have applied blinkers when considering the patently unjust and disproportionate decision in Mitchell itself and cannot now resile from it. There was clearly scope for the Court of Appeal in Mitchell to underpin the Jackson Reforms with a robust precedent without leaving it as a jagged edge cutting into the principles of fairness and justice in our legal system.
There is no real indication or hope that the new Denton guidance would have produced any different result in Mitchell. It is still clear that it would be regarded as a significant breach made without good reason and the third stage balancing exercise is still weighted in favour of factor a) the importance of the efficient and proportionate conduct of litigation and factor b) compliance with rules and orders. The only hope we can have for the future is that, despite the straightjacket of Mitchell, the front line judiciary feel able to sense the nuances of the case and provide justice and do not impose unjust and disproportionate sanctions, whether in the name of promoting the proportionate conduct of litigation, compliance with rules and orders, world peace, or, any other generally desirable objective that might interfere with the true justice of the case.
Mr. M. B. Wilkinson BA MPNLA
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