PC Keith Wallis has been charged. 5 policemen of the Diplomatic Protection Group are facing gross misconduct proceedings. David Mitchell must have thought that his luck was finally changing in relation to the ‘Plebgate’ scandal. A strong Court of Appeal, in the form of Master of the Rolls Lord Dyson and Lord Justices Richards and Elias, had other ideas.

In a far-reaching judgment handed down yesterday, the Court of Appeal rejected Mr Mitchell’s appeal against the order restricting his recoverable legal costs to nominal court fees. The Sun newspaper, the defendant in Mr Mitchell’s claim for defamation, must be grateful for the windfall caused by the failure of Mr Mitchell’s lawyers to lodge a costs budget in time.

The judgment marks a sea-change in the exercise of case management powers by the courts and the first scrutiny of newly re-drafted Rule 3.9 of the Civil Procedure Rules, which governs the circumstances where the courts will grant relief from sanction following a party’s failure to comply with a rule or direction. Lord Dyson, giving the leading judgment, stated that:

  • relief from sanction "should be granted more sparingly than previously", but it is not restricted solely to exceptional circumstances;
  • greater weight should be given by the court to the wider interests of justice and the interests of doing justice in the majority of cases, rather than focusing exclusively on seeking to achieve justice in the individual case;
  • relief from sanction will usually be given if: (i)  the breach can properly be regarded as trivial, the party has otherwise fully complied and the application for relief is made promptly; or (ii) where there is a good reason, likely caused by circumstances outside the control of the party or its legal representative;
  • when considering an application for relief, the court should work on the basis that the original sanction was properly imposed; and
  • if the party is unhappy with the original sanction, its remedy is to seek to appeal that order as an application for relief is not the occasion on which to attack the original order.

So where does this leave Mr Mitchell? He has indicated that he will continue to fight his defamation claim against the Sun to clear his reputation, but at what cost? Save for court fees of approximately £2,500, he will recover no legal fees (a loss of £200,000?£300,000?).

So what will be the effect of the judgment: in the short term, possibly a degree of panic amongst litigants in person and less organised litigators; in the long term, a reduction in "dabbling" by those law firms without the expertise, both in terms of personnel and systems, to manage the litigation process properly.