Mitchell has been ‘softened’.  On Friday, the Master of the Rolls delivered his judgment in the three cases of Denton v TH White Ltd: Decadent Vapours Limited v Bevan & Ors.: Utilise Limited v Davies and Ors. In essence, the Court of Appeal declared that Mitchellhad been “misunderstood” and emphasised that the new CPR 3.9 entailed a clear three stage test.  The “Guidance” section starts from paragraph 24…

  1. It is necessary to identify and assess the seriousness of the failure to comply.  If the breach is insignificant then the court is unlikely to need to spend much time on 2 & 3.  This is a shift away from the old classification of triviality, which was criticised.  Further, past defaults are immaterial;
  2. The court must consider why the default occurred, albeit this is not derived from CPR 3.9 per se;
  3. The court will evaluate all of the circumstances so as to deal justly with the application including factors (a) and (b) from CPR 3.9, namely (a) for litigation to be conducted efficiently and proportionately; and (b) to enforce compliance with Rules and Orders.  These factors were to be given particular importance.

Interestingly, Jackson LJ gave a dissenting judgment.  In his view, factors (a) and (b) should be given no greater weight than “all the circumstances” of a case.  Whilst that difference in opinion made no difference in these three appeals, it certainly could do in other cases.

Overall, the Denton et al. judgment has sought to engender (or reintroduce?!) more of a balancing exercise into this assessment.  The Court of Appeal further emphasised that it expected a spirit of co-operation to continue in litigation, such as I alluded to in my previous post on Mitchell.  Indeed it confirmed that the courts should penalise “opportunistic” parties in costs.

Accordingly, the Court of Appeal concluded that it did not expect many 3.9 applications to be contested henceforth.  It wants an end to this genre of satellite litigation. 

Nevertheless, I have a nasty feeling that we haven’t heard the end of this subject.  I will let you know if there is to be a trilogy…