On 1 April 2013, various amendments were introduced to the Civil Procedure Rules with the specific aim of enforcing compliance with Court Orders and Directions within civil litigation. The leading case of Mitchell –v- News Group Newspapers Ltd [2014] 1 WLR has established severe penalties for non-compliance.

The claims handler perspective

As a claims handler you will be asked to assist with various tasks which have specific court deadlines.

Historically, the parties in litigation were effectively free to agree extensions of time amongst themselves. So, if a witness was slow in finalising a statement, it was usually possible to get a little extra time. However claims handlers can no longer assume that extensions can or will be agreed. In fact, the starting point now should always be that deadlines are absolute.

Compliance and Mitchell

Various court deadlines carry inherent sanctions. So, to use the witness statement example, if statements are not filed in accordance with the Directions, the sanction imposed means the party is barred from relying upon those statements.

It is still possible to apply for an extension of time before the deadline has passed. However, getting an extension is no longer a foregone conclusion. The courts have become much stricter and will be very reluctant to allow anything more than a modest extension - and not even that if a trial date will be affected.

The worst position to be in is applying to the court after a deadline has passed; so when the non-compliance has occurred. This is known as applying for ‘relief from sanctions’ and it is at this point that the decision in Mitchell becomes relevant.

To obtain relief from sanctions it is necessary to show that the breach was ‘trivial’. Whilst not fully defined it seems that delays of more than a day will be considered non-trivial, unless there is some entirely unforeseen and unforeseeable event or change in the litigation. It must also be demonstrated that there was a good reason for the breach and that the party acted promptly in making an appropriate application.

The courts are likely to refuse more applications than they grant for relief from sanctions.

’Getting Mitchelled

Unfortunately some firms of solicitors are attempting to exploit the new Rules and the decision in Mitchell, using minor breaches (such as being a few minutes late in serving a document) to justify applying to strike-out a defence.

It is not only claimant firms who are causing difficulties. The courts are struggling to apply the new rules correctly, often treating applications for extensions of time (made before any breach has occurred) incorrectly as relief from sanctions cases.

This has all led to a new term in legal quarters, where solicitors now refer to ‘getting Mitchelled to describe the situation where we find ourselves on the wrong side of the new rules.

Practical guidance

The answer to all this is quite simple: comply with all court deadlines and never count on getting an extension. Any claims handler proceeding on this basis, with a good diary system, should avoid being ‘Mitchelled’. As soon as there is a possibility of a delay occurring notify your legal advisers so that an application can be made prospectively.

Although the courts are expected to introduce a further amendment to the civil procedure rules shortly, to allow the parties to agree a 28 day extension of time without applying to the court (provided the trial date in not affected) it is clear that some claimant firms will not agree extensions voluntarily and will continue to try and take advantage of the new rules.