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A comment on the decision in Mitchell v NGN

Definitive guidance from the Court of Appeal on the post-Jackson era of litigation – a comment on the decision in Mitchell v NGN.

The Court Appeal has sent out a very clear message in the decision in Mitchell v News Group News Papers [2013] EWCA Civ 1537 that the courts will take a strict approach to non-compliance with rules and court orders.

This case is one which was brought by Andrew Mitchell MP against The Sun Newspaper for defamation, when The Sun had reported that Mr Mitchel had been involved in a foul mouthed rant at police in Downing Street. The incident is widely known as “plebgate”.

Mr Mitchell’s claim for defamation had come to the case management stage and his solicitors had failed to file his costs budget, a document setting out the estimate of the total costs to be incurred on the litigation. The costs budget that was eventually filed a few days later was in the region of £500,000. Due to the failure by Mr Mitchell’s solicitors to file the costs budget on time the Judge, in line with the new rules, struck out Mr Mitchell’s costs budget in its entirety, save for court fees. This meant that if Mr Mitchell’s claim succeeded, he would be unable to recover his legal costs from The Sun, despite the general principle that the winning party recovers their costs.

The Judge accepted that she had made a robust decision and so gave Mr Mitchell the opportunity to appeal her decision at another hearing. At this second hearing, the Judge considered that there was no adequate reason for the failure by the solicitors to comply with the rule and that there was a need for low tolerance of delay and non-compliance in the post-Jackson era of litigation. The Judge rejected the appeal and the matter was brought before the Court of Appeal for the first ruling on the new CPR and the Jackson reforms.

The Court of Appeal acknowledged that the judiciary will need to take a more robust approach to case management and to granting relief to parties who fail to comply with rules and orders. Jackson LJ had previously made it clear that his reforms were intending to address the culture of delay and non-compliance in the civil justice system and this was at the forefront of the decision by the Judge at the first instance.

CPR rule 3.9 on granting relief from sanctions had been amended to reflect this shift in culture and now specified the obligation for the courts to consider: the need for litigation to be conducted efficiently and at proportionate cost; and to enforce compliance with rule and court orders. When making decisions on granting relief from sanctions, the Court of Appeal indicated that although the overriding objective should be considered, it was the factors in the new r3.9 that held the most weight. On this basis, the Court of Appeal endorsed the robust decision taken by the Judge.

The Court of Appeal then went on to lay down some guidance on how the new approach to relief from sanctions should be applied in practice. The starting point is to consider whether the non-compliance is trivial, such as a failure of form rather than substance, or a narrow delay in meeting a deadline where all the other requirements have been complied with. If the non-compliance is more than trivial the court will need to consider whether there is a good reason to grant relief, and the burden is on the defaulting party to show this. A good reason is generally one which arises from circumstances outside of the party’s control.

The Court of Appeal dismissed the appeal on the basis that the default by Mr Mitchell’s solicitors could not be construed as minor or trivial. Furthermore, they ruled that there had been no good reason for the default.

This case makes it clear that any robust case management decisions made by the lower courts will be supported. It also sends out a clear signal to parties that compliance with rules or court orders should not be taken lightly as there could be severe consequences!

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