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Thursday, 10 December 2015

Mitchell 2 years on - back to reality?

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  – 

at times they appear to have failed to understand the rudimentary requirements of being a litigation solicitor, including their duties to the court and their obligation to comply with rules and orders and promptly so..’ 


Notwithstanding all of this the judge declined to strike out the claim. He considered all of the circumstances of the case and noted, in particular, that the case was all but ready for trial. So, in essence, they could get on with it.

The decision was upheld by the Court of Appeal. 


So where does this leave us? Are we back to the old days where procedural breaches mean a rap on the knuckles or a costs penalty but the action itself is safe? No I don’t think so. It is important to note that the Court of Appeal in Abdulle upheld the appeal because the decision of the judge was not one to be overturned. Lewison LJ noted that the judge had said that the matter was finely balanced and the appeal court would respect the balance that he struck. But he also said that he would have come to a different decision if he had been the judge. 


What is encouraging is that Hickinbottom’s J’s judgment might indicate a changing judicial approach to such breaches. It would have been unheard of 2 years ago. But it is also clear that the Appeal court would not have gone that far. 


So the message remains that court rules orders must be followed and grave consequences can follow if they are disregarded.


But I would hope that it also means that judges will look more favorably on those parties who have done all that they can to comply with orders but find themselves in difficulties due to some minor diary error or oversight.


Keep watching this space!