Escaping the shadow of Mitchell

A relief from sanctions ruling which relied heavily on Mitchell principles was overly harsh, the High Court has held.

Ruling in Long v Value Properties [2014] EWHC 2981 (Ch), Mr Justice Barling overturned Master Rowley’s “reluctant” refusal to grant relief after a conditional fee agreement and other documents were submitted after an agreed date. He noted that the defendants had tried to take advantage of the failure to submit on time.

The defendants had argued that the £48,462 success fees of counsel and solicitor were not recoverable because of the non-compliance. The claimants countered that a telephone call, e-mail or fax would have resolved the omission, that no prejudice had been caused, and that they would apply for relief from sanction. Master Rowley had indicated that he had no choice, when he heard the case in January, because he had to apply the principles set out in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537.

However, the case pre-dates the Court of Appeal’s decision in Denton v WH White Ltd & Others [2014] EWCA Civ 906, which clarified the principles on sanctions made in Mitchell, and provided guidance on the interpretation of CPR r.3.9 relating to relief from sanctions for breach of rules, practice directions and orders. According to Denton, the judge should take all the circumstances of the case into consideration and relief should be granted unless the breach is serious or significant.

Granting relief, Barling J said: “The defendants’ behaviour here has been precisely the kind of opportunistic, and non-cooperative conduct in litigation condemned by the Court of Appeal in Denton. Had the defendants taken a different course the matter could probably have been completely resolved within the overall period of the extension of time which they applied for and were granted by the claimant, or very soon thereafter.”

NLJ columnist Professor Dominic Regan, of City Law School, says: “So many judges were thrown by the Mitchell decision.

“This was an example of someone knowing that their order was wrong yet still making it (hence the reluctance comment). The outcome was an utter travesty. Denton has done so much good.”