For some months lawyers have been quaking in their brogues. If you missed a court deadline, used the wrong form or split an infinitive in a pleading there was a risk that the courts would shout “Mitchell” and throw out your case. Today the Court of Appeal allowed appeals in three cases concerning life post-Mitchell. The decisions should enable lawyers to sleep more easily at night.
The three amigos
In Denton v TH White the claimant did not serve a number of witness statements on time. The judge didn’t seem to mind that the statements were late. The defendants shouted “Mitchell” and argued that the statements should be ignored. The defendant, therefore, appealed the judge’s decision.
In Decadent Vapours Ltd v Bevan, the claimant filed its pre-trial checklist six days late. There was also a delay with payment of the court fee and a saga regarding a lost cheque. The judge pointed to “Mitchell” and struck out the claim. The claimant thought this was a tad harsh and it appealed the judge’s decision.
In Utilise TDS Ltd v Davies, the claimant missed a couple of court deadlines: one by 45 minutes and another by 13 days. The judge pointed to “Mitchell” and struck out the claim. The claimant appealed.
The Court of Appeal decision
The three appeals were heard by a heavyweight panel including the Master of the Rolls and Jackson LJ. The Law Society and the Bar Council intervened, so that the ‘brogued’ and ‘robed’ fraternities were able to express their concerns about life post-Mitchell. Many of their concerns related to “windfall” strike outs and inconsistent approaches between courts.
The Court of Appeal made it clear that this decision should be all that any litigator need consider in relation to Rule 3.9. The court said that it was unnecessary to refer to Mitchell or the various cases which have subsequently considered Mitchell. This decision, therefore, acts as a ‘one stop shop’.
Although the judges couldn’t quite agree on all points, they preferred a more structured approach when deciding what sanctions ought to apply when a deadline is missed. First, if there is a breach, is it serious or significant? If it is serious or significant, the court should then consider if there was good reason for the breach. If there is good reason, that will tend to justify granting relief from sanctions. If the court does not consider that there is good reason, then it should consider the factors set out in Rule 3.9, such as whether there have been persistent breaches.
What does it mean?
The guidance is helpful as it should make it easier to decide whether to oppose an application for relief from sanction. The case should also prevent “windfall” strike outs as it seems as though costs orders will be the ‘stick’ of choice. Although this is good news for lawyers, it may be seen by some as diluting the reforms proposed by Jackson LJ. It will be interesting to see what life is like post-Denton.