Mitchell substantially sound simply misunderstood
The Court of Appeal has now handed down judgment dealing with issues arising from the interpretation of the “Mitchell” decision following which a “zero tolerance” approach was adopted in many cases as a result of a failure to fully comply with orders and/or directions.
Applications for relief from sanctions had proved unsuccessful given the rigid application by the Courts of “Mitchell” and as a result three cases were fast tracked to the Court of Appeal and heard by The Mater of the Rolls, Lord Justice Dyson, Lord Justice Jackson and Lord Justice Vos.
Denton and Others –v- T H White Limited – An appeal against the decision to allow the Claimant to adduce an additional six witness statements and to vacate the trial with the appellant submitting that the judge had not applied the new CPR 3.9.
Decadent Vapours Limited v Bevan – An application for relief from sanctions was refused where a claimant had failed to comply with an order stating that unless it filed a pre-trial checklist and paid the hearing fee by a specific date, its claim would be struck out.
Utilise v Davis – Considered if a number of breaches could be aggregated together so that whilst individually the breaches were trivial, the breaches considered together militated against relief from sanction.
The matters were considered 16 – 18 June with judgment handed down 4 July 2014.
All three Appeals allowed sending the message that the decision in Mitchell was “sound” but misunderstood.
Parties should agree extension of 28 days where breach “trivial”.
A Three stage approach recommended:
1. Assess the seriousness and significance of the breach;
2. Assess the reasons why the breach has occurred and
3. Look at all the circumstances of the case taking into account the need to enforce compliance with rules and orders
If the breach is neither serious nor significant the court is unlikely to spend much time on stages 2 & 3.
The COA considered that the satellite litigation that has arisen post “Mitchell” can be blamed on a failure to apply the decision correctly
The Judgment adds that it is “wholly inappropriate” for litigants or their lawyers to take advantage of mistakes by opposing parties in the hope that “relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage”
It should only be in exceptional cases where a contested application for relief from sanctions is necessary with the Court more ready to “penalise” opportunism.
The court can also record on its order that opposition to RFS application was unreasonable conduct to be taken into account under CPR r44.11
Whilst the full judgment is awaited we at Harmans welcome what appears to be a clear signal for the return of common sense with Party’s unable to seek a windfall for oversights and trivial breaches.