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03 January 2017 / Dominic Regan
Issue: 7729 / Categories: Opinion , Procedure & practice , Costs , Budgeting
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Default remains deadly

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Dominic Regan discusses the pendulum swing towards judicial intolerance

Despite soothing noises to the contrary, the failure to comply with Orders, Rules and Directions can still have ghastly consequences. 

The infamous decision in Mitchell v News Group Newspapers [2013] EWCA Civ 1537, [2014] 2 All ER 430 had even rational commentators frothing at the mouth. It appeared that their concerns were assuaged by the recalibration performed by the Court of Appeal in the subsequent Denton judgment (see Denton v TH White Limited & others [2014] EWCA Civ 906, [2014] All ER (D) 53 (Jul)). 

However, a run of decisions this year have unarguably moved the pendulum back towards judicial intolerance. 

Chilling example

A chilling example is Oak Cash and Carry Ltd v British Gas [2016] EWCA Civ 153, [2016] 4 All ER 129. The defendant was two days late in complying with an “unless order” which required a trial checklist be filed at court. The defendant was refused relief from

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