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Friday, 28 November 2014

The Continuing Insanity of the Mitchell Litigation

If there is one word that still strikes fear into the hearts of even the most robust litigators it is the word Mitchell. Just say it in their company and your will see a total personality change. They will stare blankly ahead like rabbit in headlights. Their bottom lip will quiver and they will quickly head for the door. It is a word that they associate with missed deadlines, strike outs and sheepish letters to their indemnity insurers.

It was a name that dominated this blog for several months last year –

The worst excesses of that decision were eventually mitigated by the Court of Appeal in the later case of Denton but that overriding fear of missing the bus by a few days has never gone away –

So with all the excitement of the Mitchell case it has been easy to forget that there was real dispute taking place between Mr Mitchell, a former government Whip, and the Sun Newspaper. This, of course, was all about Plebgate – the infamous exchange between Mitchell and a Police Officer in Downing Street during which the MP allegedly called the officer a ‘fucking pleb’. The exchange made the front page of the Sun. Mr Mitchell sued them for libel. Yesterday the High Court found against him. Mitting J ruled that he probably did use the offending language. Not only has he lost a case that was brought in order to salvage his reputation, he also faces a huge legal bill. Various figures are going around of between £1.5m and £3m. He has to pay £300k on account by January.

That estimate of the legal costs beggars belief when you think about the ‘scary’ Mitchell case – the one about missing deadlines. What happened there was that his lawyers were supposed to file a costs budget with the court by a particular date. They failed to do it and were effectively deprived of all of their costs as against the other side. But lets stand back from that for a minute.

The idea of the budgeting exercise was to control costs. The whole point of the Jackson reforms was to rein in the cost of civil litigation. A much quoted statement from the Master of the Rolls was –

‘Doing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at proportionate cost.’
So we have a case which is about a heated conversation between a politician and a police officer that lasted a few seconds. We have seen a satellite argument go to the Court of Appeal, costing thousands of pounds, because lawyers missed a deadline to serve a budget that is supposed to part of a procedure to control costs. Now we have seen the conclusion of the main action with costs possible running into millions. 

As John Hyde of the Law Society's Gazette tweeted yesterday - 

'I wonder how often Andrew Mitchell wishes he'd just taken the Tube home that night'

Is it just me? How have we gone from ‘justly and at proportionate cost’ to this?

The famous words of DH Lawrence come to mind –

‘The world of men is dreaming, it has gone mad in its sleep, and a snake is strangling it, but it can't wake up.’

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