In Mitchell v News Group Newspapers (2013), the Court of Appeal, in a ground breaking decision, refused to grant relief from a High Court master’s imposition  of a severe penalty given that party’s failure to serve its costs budget in time.

In so doing, the Court of Appeal ushered in a new era of no-nonsense compliance with court rules, practice directions and orders. It left litigators with little doubt that in the absence of a good reason, breaches of the rules (unless trivial) are unlikely to be tolerated and instead may be severely punished. The Mitchell decision has since been applied by a number of High Court and Court of Appeal decisions.

All litigation lawyers should now be acutely aware of the new “zero tolerance” culture and do everything in their power to ensure that they are not in the position of having to seek forgiveness for failing to comply with a rule, practice direction or order. This note provides a brief outline of some of the most important “dos” and “don’ts”.

For more information on the Court of Appeal’s decision in Mitchell please refer to our update “Court of Appeal imposes three line whip on litigants’ compliance with court procedure, available on the Clyde & Co website: click here

Do:

  • Remember that Mitchell applies to all litigation, whether in the County Court, High Court, civil division of the Court of Appeal and whether or not the case’s value is over GBP 2 million
  • Keep in mind that we now have a new culture of strict compliance
  • Be aware of the two new key considerations, namely that:
    1. litigation is conducted efficiently and at proportionate cost
    2. compliance with all rules, practice directions and orders is required
  • Remember that, in relation to applications for relief under Civil Procedure Rule 3.9, these two factors rank higher in importance than:
    1. “all the circumstances of the case”
    2. the old rule 3.9 “checklist” of nine factors (although these are arguably still of some relevance)
    3. whether or not the granting of relief would cause prejudice to your opponent
  • Think ahead when deadlines in a case are being set and consider what might happen in the case in the future. In some cases, (for example) it may be possible to anticipate that disclosure lists or witness statements may need to be updated or supplemented closer to trial, in which case it may be worth requesting two deadlines, the second being nearer to trial, at which point updated or supplemental lists/witness statements may be exchanged
  • Take preparatory steps as early as possible, even though you may not yet be aware of the deadline for completing a particular step such as (for example) your costs budget or disclosure report (which are required to be filed and served 7 and 14 days prior to the case management conference respectively). Once you do become aware of the relevant deadline (e.g. upon receiving notification of the CMC date), you might find yourself with insufficient time  to complete the relevant step. Remember Master McCloud’s comment at first instance in Mitchell that “the mere fact that a date is set for a CMC is not supposed to be the starting gun…” For example, as early as possible:
    • Investigate your ability to provide security for costs (if you are likely to be ordered to provide security)
    • Prepare your costs budget
    • Begin the disclosure process
    • Investigate the whereabouts of witnesses and prepare witness statements
  • Diarise carefully all deadlines and make sure you do not miss them
  • Ensure you obtain proof of filing and serving to ensure that you are able to provide evidence to rebut any allegation by your opponent that you failed to file and serve a particular document/s (e.g. notice of funding, costs budget, disclosure report, witness statements) in time
  • Be aware that simply agreeing an extension with your opponent without seeking the court’s permission may not be allowed (check the rule, practice direction or order setting the time limit in question, which may restrict the parties from simply agreeing to vary it and see also CPR r.3.8(3), which requires a party to seek the court’s permission to vary a time limit where  the relevant rule, practice direction or court order specifies consequences for failing to do something within the specified time). In light of this:
    • Consider asking the court to include a provision in its directions that the parties have liberty to agree extensions of time for up to (for example) 14 days, even if a rule, practice direction or court order provides otherwise
  • Apply in good time for extensions if needed, clearly stating why the extension is sought. The cases clarify that applications for extensions made before the deadline will be looked upon more favourably than those made afterwards. Try to get the hearing listed prior to the expiry of the deadline. This may not prove possible, but by contacting your opponent and making your application early, you will have demonstrated that you have done your best to bring the matter to the court’s attention as soon as possible
  • Make any application for relief from sanction under CPR 3.9 promptly for the same reasons. Failure to do so may render the application futile
  • Assume the worst: do not rely on cases where the courts appear to have taken a more lenient approach to non-compliance
  • Take advantage if your opponent has condoned or waived the breach by drawing this to the attention of the court

Don’t:

  • Delay – take action as soon as you become aware that a deadline is approaching which you are unlikely to meet
  • Assume that your opponent will cooperate if you ask for an extension close to the deadline. They will have a duty to take advantage of the new regime for their client
  • Assume that the court will grant your application just because your intentions were good or because you only narrowly missed the deadline and/ or there is no prejudice to your opponent
  • Expect arguments based on overwork or unexpected absences/holiday arrangements, to save the day. Such arguments may have had an impact before Mitchell, but they are unlikely to cut any ice now