Mitchell – clarified!
The Court of Appeal has clarified and amplified the guidance given in the Mitchell case, setting out when relief from sanction will be granted. In Denton, Decadent and Utilise, the Master of the Rolls said that Mitchell had been misunderstood and was being misapplied by some courts. A three stage approach to assessing an application is set out to (i) assess the significance and seriousness of the failure; (ii) consider why the default occurred; and (iii) evaluate all of the circumstances to enable the application to be dealt with justly. The term ‘significance and seriousness’ effectively replaces previous consideration of whether a breach was trivial or not.
Buffer direction – some leeway for deadlines
Pending the Denton decision, CPR 3.8 was amended on 5 June 2014 to include a provision allowing parties to agree extensions of time of up to 28 days without needing to seek permission from the court. This will hopefully restore practitioners’ ability to deal with such extensions in a common-sense manner, without incurring the time, cost and uncertainty of applying to the court.
CPR 3.8 now specifies that where a rule, practice direction or order requires a party to do something by a specified time and specifies the consequences of failure to comply, the parties may - by prior written agreement - extend the time for compliance by up to 28 days.
However the ability to extend is qualified. The parties may only agree the extension provided that no hearing date is put at risk. Careful attention needs also to be paid to the need for agreement in writing.
Fraud – fundamental dishonesty and more
The term ‘fundamental dishonesty’ has been in the news for a number of reasons recently – first in relation to the qualified one way costs shifting (QOCS) exception, and secondly because it has now been included in draft legislation to enable courts to dismiss claims which are found to be fundamentally dishonest.
In relation to QOCS, in the case of Gosling -v- Screwfix, a circuit judge has ruled that substantial exaggeration can amount to fundamental dishonesty exposing the claimant to costs. While this is only a county court decision, it is nonetheless significant and, hopefully, an indicator of things to come. The legislation to enable dismissal of fundamentally dishonest claims is making its way through Parliament within the Criminal Justice and Courts Bill - albeit not without some controversy.
Meanwhile, legislation is also before Parliament to ban solicitors from offering inducements to potential claimants.