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The default dichotomy

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14 February 2014 / Morwenna Macro
Categories: Opinion , Legal services
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Morwenna Macro discusses post-Mitchell developments & the two-tier test that the courts may adopt in practice

The Court of Appeal in Mitchell v News Group Newspapers [2013] EWCA Civ 1537 [2013] All ER (D) 314 (Nov) did not intend to change the relationship between justice and procedure “by turning the rules and rule compliance into the mistress rather than the handmaid of justice”; but is this the result of their ruling?

While it seems that generally the judiciary is feeling constrained to narrowly follow the robust approach of Mitchell; there is still some leeway for judges to use their discretion and, with some ingenuity, the traditional notions of justice and prejudice may still prevail.

Mitchell in effect has created a two-tier test; trivial defaults are usually forgiven; non-trivial defaults normally need a good reason for relief to be granted. 

Measuring up

So what is a trivial default? It is a minor slip that causes little or no prejudice, such as a narrowly-missed deadline or a failure of form rather than substance. Therefore:

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