With apologies to Brian Clark for adapting the title of his brilliant play I am bound to observe that the worrying trend of cases following Mitchell is denying litigants the opportunity of determining their own destiny.
Taking a case to Court is a last resort. Nobody wants to incur the cost, stress or delay that inevitably follows a claim. Time is a great healer. Very often parties want a time out – an opportunity to reflect and consider how best to resolve their disputes without permanently damaging what was often a good business or personal relationship.
The Court gives directions as to how a claim should proceed. It imposes time limits within which certain steps should be taken. It has the power which it is now exercising more regularly to impose on parties sanctions for non compliance with its directions. Should such a power be exercised even when the parties agree to a different course?
In M A Lloyd & Sons Ltd v PPC International Limited  EWHC 41 (QB) the defendant did not make any application to the court specifically in respect of the claimant’s default in complying with a Court Order in relation to a witness statement. The defendant asked only for little more than a new timetable. Turner J described that approach as “unduly timid” and proceeded of the Court’s own initiative to debar the Claimant from raising any issue at trial that should have been dealt with by the witness statement.
One wonders whether less time and costs might have been spent on the application (and the parties might ultimately have been more inclined to settle the claim) if the “timid” approach for which the parties contended had been endorsed by the Court.