In our newsflash of 27 November 2013, we reported on the ground-breaking case of Mitchell v News Group Newspapers, where the Court of Appeal made clear that the new Jackson regime for civil litigation had ushered in a whole new culture of conducting litigation. Henceforth, warned the Court, parties which failed to meet procedural deadlines or to comply with rules and court orders could expect little sympathy from the courts.
There has been a flurry of cases since the Mitchell ruling, and initially some judges applied the new guidance rigidly, resulting in some very harsh outcomes. In a number of cases, parties were refused permission to rely on witness statements or expert evidence because they had served their evidence marginally late. Twice, the parties' lawyers' failure to serve a notice of funding on the other side resulting in precluding their recovering the additional costs to which they were entitled under a funding agreement. A case was struck out for failings in relation to disclosure and, in an even more draconian example, a case was struck out for a claimant's failure to serve its trial bundle in time.
The general message seemed to be that, post-Mitchell, the need for procedural compliance took precedence even over the need for justice between the parties. However, in the past few weeks, judges have begun to show more lenience towards breaches of the rules. In one case, a judge refused to strike out a defence where the defendant had served its disclosure 46 minutes late. In another, the claimant's failure to put the correct statement of truth on a document was excused as a matter of form rather than of substance. Extensions of time for complying with directions have also been granted more frequently, and a defendant who refused to grant the claimant an extension was roundly criticised. The judge noted that it was not the claimant's failure to comply with a deadline which had caused the derailment of the timetable, additional costs and wasted court time, but the defendant's unreasonable refusal to grant the extension.
It is too early to say with certainty that the courts are now reverting to a more tolerant approach but there are definitely signs that some breaches of the rules can be forgiven, particularly where they cause no prejudice to the non-defaulting party.