Relief from sanctions

The Court of Appeal in Mitchell v News Group Newspapers Ltd did not say that the two factors specified in CPR 3.9 must always prevail; the court should still consider "all the circumstances" when deciding whether to give relief from sanctions. In this case, where both parties had failed to serve witness statements on time, the two factors could reasonably be assessed as having been outweighed by the other circumstances (Chartwell Estate Agents Ltd v Fergies Properties SA). 

In-time applications for extensions of time

Applications for extensions of time made before the expiry of the time limit are not applications for relief from sanctions and the Mitchell guidelines do not apply to them. Legal representatives are furthering the overriding objective and saving costs for the benefit of their client if they avoid a contested application by agreeing to a reasonable extension of time that does not imperil future hearing dates or otherwise disrupt the conduct of the litigation (Hallam Estates Ltd v Baker).

Settlement offers

The defendant's settlement offer, which had been an open offer and was open for only 22 hours, could not be a Part 36 offer and was open for such a short period that the defendant deserved no credit for it (Saigol v Thorney Ltd).

Defective claim forms

Where there is an issue as to whether the “brief details of claim” in the claim form are apt or sufficient to cover what was pleaded in the particulars of claim, it is possible to look to the particulars of claim and communications between the parties as an aid to interpreting the claim form. As long as the claimant has a known genuine cause of action at the time of issuing the claim form and the irregularity is merely a failure properly to set it out, the court will not allow a surrender of substance to form unless irresistibly driven to do so (Travis Perkins Trading Company Ltd v Caerphilly County Borough Council).

Proportionality test for recoverable costs

The old proportionality test (the Lowndes test) applies to the assessment of all costs incurred in cases commenced before 1 April 2013 and to costs incurred in respect of work done before that date in cases begun on or after 1 April 2013. When applying the Lowndes test, the court can consider on an item by item basis whether a particular item is proportionate and necessary, even if the costs are proportionate on a global basis (Finglands Coachways Ltd v O’Hare).