Guidance on Mitchell imminent?

The Court of Appeal is to hear three consecutive appeals over two days in a bid to clarify the extent and limits of the Mitchell principles.

In an unusual move, Lord Dyson, the Master of the Rolls, will preside over Utilise TDS Ltd v Davies [2014] EWHC 834 (Ch) and two other cases on 16-17 June, according to 39 Essex Street, where barrister Vikram Sachdeva is acting for the appellant. The court hopes to give further guidance for litigators struggling to understand the scope of Mitchell.

In Mitchell v News Group [2014] EWCA Civ 1537, the Court of Appeal refused relief from sanctions for a missed deadline.

The county court this week reinforced the tough line taken in Mitchell for non-compliance with directions, although Lord Justice Jackson has appeared to be suggesting a more lenient approach.

Capital Home Loans Ltd succeeded in a case against Fozia Shahzad-Rubani, as a result of her legal team’s failure to meet deadlines for the joint instruction of experts and the exchange of witness evidence.

Rebecca Sharpe, partner at Rosling King, who acted for Capital, says: “The rejection of all three of the defendant’s applications shows that the court is not softening its approach to non-compliance and is sticking to the strict Mitchell line. 

Declining to grant relief, District Judge Langley emphasised that Mitchell makes clear that potential injustice is overridden by the need to enforce compliance with orders and directions. 

In March, Lord Justice Jackson said parties should be able to agree sensible variations of time limits, in his paper to the Civil Justice Council conference. 

Writing for NLJ online this week, Jeremy Ford, 9 Gough Square, says Jackson LJ recently elaborated on this point in his lead judgment in Hallam Estates v Baker [2014] EWCA Civ 661, making it “clear that parties are obliged to further the overriding objective by avoiding contested applications and agreeing reasonable extensions of time”.

He says Hallam confirms that the Mitchell principles are avoided if an in-time application is made and that all six of the factors listed for consideration in the overriding objective have equal weight.

See also Dominic Regan’s cut-out and keep guide for litigators post-Mitchell in this week's NLJ.