Mitchell v News Group Newspapers Ltd

[2013] EWCA Civ 1537

The fallout from Andrew Mitchell’s altercation with the police whilst trying to ride his bike out of Downing Street, is of course, not just limited to politics. The libel action he has brought against the Sun newspaper has called into clear focus the attitudes the courts will take to the late filing of costs budgets. Here Master McCloud had held that because the costs budget had not been filed in time, Mr Mitchell was to be treated as having filed a costs budget comprising only the applicable court fees. The costs budget actually filed (late) by his solicitors was in the sum of £506,425. In the CA, the judgment was given by the Master of the Rolls, Lord Dyson, who noted that the question at the heart of the appeal is: how strictly should the courts now enforce compliance with rules, practice directions and court orders? The traditional approach of our civil courts on the whole had been to excuse non-compliance if any prejudice caused to the other party could be remedied (usually by an appropriate order for costs).

However, in April 2013 there was a change in the court rules, with the new CPR 3.9(1) providing that:

“On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—

  1. for litigation to be conducted efficiently and at proportionate cost; and
  2. to enforce compliance with rules, practice directions and orders.”

The CA noted that, in applying this new rule, it will usually be appropriate to start by considering the nature of the noncompliance. If it can be considered to be trivial, the court will usually grant relief provided that an application is made promptly. Examples given were where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms. Further, applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event.

However, where the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. If (and it appears to be a fairly big “if”) there is a good reason then the court will be likely to decide that relief should be granted. But the mere overlooking of a deadline, whether on account of overwork or otherwise, is unlikely to be seen as a good reason. Here there was no good reason put forward and the CA adopted what they termed a robust approach and upheld the Master’s Order. The Master of the Rolls said:

“The new more robust approach that we have outlined above will mean that from now on relief from sanctions should be granted more sparingly than previously.”