I recently saw a face on the cover of a magazine. I thought it was familiar. On closer inspection it was Andrew Mitchell MP. How quickly politicians fall out of the news! For lawyers, he will of course be forever associated with the darkest months in civil litigation that some of us have ever known. In the light of the infamous Mitchell litigation and the Jackson Reforms litigators lived in fear of cases being struck out for minor procedural breaches. Many considered early retirement.
The situation created a level of uncertainty that threatened to undermine confidence in our civil justice system –
Cases were being struck put in their entirety following delays of a few days and in one case a single day –
One consequence was an unnecessary hostility between opposing solicitors who risked being sued if they did not take the most trivial of points to try and knock out their opponent’s claim by default.
It was a great relief to us all that the case of Denton in 2014 brought us back to earth, at least in part. The Court of Appeal reminded judges of the need to consider all of the circumstances of the case when deciding whether to grant relief from sanctions for relatively minor breaches. Lawyers were warned against taking opportunistic procedural points –
It is fair to say that the world has calmed down a bit since then.
So where are today? The recent case of The Police v Abdulle is telling. The case is summarised in Gordon Exall’s blog –
At first glance this seems to be a remarkable turnaround. The claimant’s solicitors were guilty of a whole series of breaches of orders. Hickinbottom J at first instance said that –