Litigation lawyers have broadly welcomed new Court of Appeal guidance on Mitchell.
Ruling in three conjoined appeals where one party had sought relief from sanctions under CPR 3.9, Lord Dyson and Lord Justice Voss set out a three-stage test for relief applications, in Denton v TH White; Decadent Vapours Ltd v Bevan; Utilise TDS Ltd v Davies [2014] EWCA Civ 906.
The Court concluded that Mitchell v News Group Newspapers [2013] EWCA Civ 1537 had been “misunderstood” and “misapplied” by the courts in subsequent cases although Mitchell itself remained a sound decision. In Mitchell, a libel case brought by Andrew Mitchell MP over allegations that he called a police officer a “pleb” at the gates of 10 Downing Street, strict sanctions were applied for a missed deadline, leaving Mitchell’s legal team unable to recover more than their court fees in costs. The view that the courts would be strict on case management and impose severe penalties created an incentive for litigators to challenge minor breaches or delays by the opposing party. The case led to uncertainty over application and an increase in satellite litigation.
Under the new three-stage test, judges should: identify that the failure to comply is “serious” or “significant” (previous conduct may be a relevant consideration); consider whether there is a good reason it occurred; consider all the circumstances of the case.
Delivering his judgment, Lord Justice Jackson LJ said “co-operation should be encouraged and satellite litigation should be discouraged”.
He added: “The new rule 3.9…is not intended to introduce a harsh regime of almost zero tolerance, as some commentators have suggested.”
Peter Kaye, partner at Linder Myers Solicitors, who acted for Utilise, said the new guidance provided “fair, and clear, definitions with regards to the weight of breaches clarifying those which will warrant the court’s time and should serve to minimise satellite litigation over trivial matters going forward.
“A more pragmatic and sensible approach to applications for a relief from sanctions can now be adopted by both legal professionals and the courts as a result.”
Des Hudson, chief executive of the Law Society, which intervened in the cases, said the judgment would make civil litigation less adversarial and more co-operative.
“The court's previous decision in Mitchell and the way it was being applied by the lower courts had resulted in disproportionate penalties and a breakdown in co-operation between parties to litigation, clogging up the system and introducing huge uncertainty into the whole process of civil litigation,” he said.
“This in turn had led to a significant amount of unnecessary satellite litigation, a waste of costs and court resources and the risk of big increases in professional indemnity insurance costs for our members. The guidance has clarified the factors which the court believes should be taken into account.”
