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A comment on the fallout from Mitchell v NGN

A few months have now passed since the high profile decision by the Court of Appeal in Mitchell v NGN and, on the face of it, the outcome looks bleak for practitioners across the country.

Litigation has become a procedural nightmare, causing sleepless nights and placing huge amounts of pressure on the already burdened shoulders of solicitors. The decision in Mitchell has inevitably led to parties taking issue with minor breaches of the rules. I myself have been found guilty of doing this, seeking to challenge every possible perceived breach of a rule or order. Reams of satellite litigation has started to emerge as a result of parties exploring every angle and testing the new system. I personally was too young to experience the “once in a lifetime” Woolf reforms, but I imagine that something similar took place then. Surely LJ Jackson, having previously witnessed the fallout from the Woolf reforms, could not have intended this?

Judges too have been taking a robust and hard-line approach more frequently. Take for example the recent decision in Burt v Linford Christie. This was a personal injury claim where liability had been admitted. The Court issued directions and listed a CMC. There was no direction for the filing and serving of costs budgets, but the claim had been assigned to the multi-track and so the parties were required to file and serve these at least 7 clear days before the CMC. The Claimant filed and served his costs budget on time, but the Defendant submitted his a day late.

DJ Lumb struck out the Defendant’s budget and declined to grant relief from sanctions at the CMC. The Judge considered the now famous passage from The Master of the Rolls, LJ Dyson, in Mitchell. “If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly … Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order … If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief.”

DJ Lumb considered that being one day late could not be trivial and that relief should not be granted as the parties had had ample warning, and that the breach had ultimately led to a relief from sanctions hearing at the CMC: meaning that it would need to be re-listed.

It strikes me that decisions like this will hardly serve to increase the efficiency of the Court system. A decision like this takes the spotlight away from the substance of the case itself and it is ultimately justice that loses out. One should also spare a thought for the already beleaguered solicitor profession. Reductions in legal aid, a squeeze on fees and increased insurance premiums have already taken their toll. Mitchell will not only lead to more work for solicitors, but also to still higher insurance premiums, thereby accelerating the closure of the smaller firms no longer able to stay profitable.

Don’t get me wrong, the justice system was, and still is, in a mess and needs to be sorted out. Inefficiencies and delay were tolerated far too much in years gone by. However, everyone who practices at the coalface knows that the real inefficiencies and problems lie at the Court service’s door. Too many times in my fledgling career have I seen the Court lose forms and letters. It is not uncommon to wait for over 3 weeks for a response to a letter, or to not receive a notice of hearing in good time. In one case, I waited over 6 months for a CMC to be listed in an unnamed County Court. Surely an improvement to the logistical system would speed up the turning of the wheels of justice, thereby saving time and cost for all concerned.

Back to the Mitchell decision and, on a positive note, it seems that not all Judges are toeing the line. In the Queens Bench Division in the unreported decision in Adlington and others v ELS International Lawyers LLP, HHJ Oliver-Jones QC heard a relief from sanctions application where 7 of the 134 Claimants had not served their particulars of claim on time as they had been on holiday at the relevant time and their solicitors could not contact them. Relief was granted on the basis that the breach was relatively trivial. The Judge made it clear that the reforms had not changed the relationship between justice and procedure so as to transform compliance with the rules into “trip wires”.

I would like to finish this article with a quote from LJ Bowen in Smith v Cropper [1885], which I understand was oft-quoted in interlocutory hearings. “Now, I think it is a well-established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights … Courts do not exist for the sake of discipline, but for the sake of deciding maters in controversy …”. I do hope that the reasoning in this passage prevails through these difficult times.

This article is for information purposes only and is not legal advice. It should not be acted or relied upon and legal advice should be sought before applying any of the information in this article to any facts or circumstances.

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