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Friday, 21 February 2014

The real scary Mitchell

There was a time when Mitchell referred to a scary family in Eastenders. 

Today the name brings terror to the heart of most lawyers.

I recently had a case involving a claim for Noise Induced Hearing Loss. There was a disagreement between my medical expert and the defendants’ expert as to the extent to which the loss was caused by noise. This is a very familiar scenario. The court had ordered the experts to have a discussion and prepare a joint report setting out exactly the basis of their disagreement. A deadline date was fixed for delivery of the joint report. The experts delayed, through no fault of either side’s lawyers. The date came and went. So we went off to see a judge. What would he do? Would he strike out both side’s evidence and call it a draw. In this country a draw means the claimant loses! He seemed to be very keen to strike someone out. But it was neither side’s fault so finally he extended the deadline date with great reluctance.

The very thought of both sides being penalised is almost too bizarre to be believed. But Litigation Futures report a case where a judge has done just that. In Porbanderwalla v Drawbridge Ltd both sides failed to file a costs budget. There was genuine uncertainly as to whether this was required, as the court’s notice was silent. Notwithstanding this the District Judge penalised both sides by limiting their recoverable costs to court fees only.

Not surprisingly both sides were as one when they appealed and the appeal judge set the order aside. Talk about bringing the justice system into disrepute!

And then there is the ‘well intentioned incompetence’ on the part of the court office. I have come across this twice in the last week. Last Friday I filed a Directions Questionnaire with a costs budget. The order from the court required it to be filed by 4.00 on 16th February – when I would have been in the middle of my Sunday Lunch. Now the rules deal with that and the date is interpreted to be the Monday.  But imagine if I made a similar diary error and missed something by a day. I would be off to my indemnity insurers.

In the second case a colleague issued a protective claim due to Limitation Issues and marked her covering letter to the court very clearly - SOLICITOR SERVICE. As you will have guessed the court served it anyway causing no end of stress in relation to service of additional documents within 14 days. Again this can be resolved by the court’s correcting its own error. But it would be catastrophic if the mistake was on our side.

The truth is that these things happen in the real world and the sooner the Judiciary and the Rules Committee realizes this, better for us all. This policy may well have worked in Singapore. I have no idea how many cases are handled over there.

But it is not working here. We are becoming diary managers not lawyers.

Please bring us back to planet earth.

Monday, 17 February 2014

Mitchell - A Glimmer of Sanity?

It is a few months since the Court of Appeal judgement in the case of Mitchell changed the face of Civil Justice in this country –

Since that judgement the courts have been swamped with applications. This was predicted by most commentators. The whole focus has moved from the merits of an individual case to an obsessive fear of missing deadlines or getting the wording wrong on documents.

In my earlier blog I mentioned the case of Romano v k Papers (Blackburn) Ltd where HHJ Gore struck out a claim where a deadline had been missed by one day  in particularly difficult circumstances.  

One recent case has highlighted attempts to take matters to even more ridiculous lengths. In the commercial case of Lakatamia Shipping Co Ltd v Nobu Su & Ors there was a delay by Defendants, of just 45 minutes in dealing with disclosure of documents. The claimants took the point and argued that the case should be struck out. The High Court found in favour of the defendants. The delay was trivial. Interestingly Hamblen J. found that there was no prejudice caused by the delay. This could be a some small encouragement as there was no hint of prejudice in the Romano case. In that case the prejudice was suffered by the court administration which had to find time to deal with the application for relief. Presumably the court faced similar issues in the Lakatamia case.

In another recent case - The Bank of Ireland & Anor v Philip Pank Partnership [2014] EWHC 284, Mr Justice Stuart-Smith has commented that there a risk in some cases that 

‘ …Such a conclusion would, in my judgment, serve only to bring the rules of procedure and the law generally into disrepute.’

I would suggest the damage to our civil justice system has already been done. The world changed when the Master of the Rolls said in Mitchell –

There now has to be a shift away from exclusively focussing on doing justice in the individual case”.

There is a real risk that our civil courts are becoming more concerned about dates and forms than about Justice. Indeed we should then stop calling it a civil justice system.

Is it too much to hope for that this decision in Lakatamia suggests a glimmer of sanity? 

Maybe things will begin to settle down. But is certainly a long way back to the real world. In the meantime the courts will be dealing with more and more satellite hearings and the cost of litigation will go through the roof.