CoA decision should sound “death knell” for post-Mitchell tactics
Litigators are hopeful that a Court of Appeal (CoA) decision to overturn a High Court decision refusing relief from sanctions will stem the unco-operative and tactical stance taken by some parties post-Mitchell.
Overturning the judge’s decision, in Hallam Estates Ltd and Michael Stainer v Teresa Baker [2014] EWCA Civ 661, this week, Jackson LJ sitting with Lewison and Christopher Clarke LJJ, granted relief over an application for an extension of time.
The claimants had asked for an extra 21 days to serve documents, which was opposed by the defendants. The costs judge granted the extension, but the High Court refused it on appeal.
Delivering judgment, Jackson LJ said that “an application for an extension of the time allowed to take any particular step in litigation is not an application for relief from sanctions, provided that the applicant files his application notice before expiry of the permitted time period. This is the case even if the court deals with that application after the expiry of the relevant period…This still remains the case following the recent civil justice reforms.”
Jeremy Ford, 9 Gough Square, says: “This decision should sound the death knell for the tactical and unco-operative stances taken by some parties post-Mitchell.
"It clarifies that the principles of Mitchell have no application when an in-time application is made for an extension of time, even if heard after the date for compliance, and Jackson LJ has reconfirmed that the addition of 1.1(2)(f) to the overriding objective does not require courts to refuse reasonable extensions of time which neither imperil hearing dates nor otherwise disrupt proceedings.”
NLJ columnist Professor Dominic Regan, who assisted Jackson LJ with his civil costs reforms, says: “This is a very important case because Sir Rupert confirms that an application for more time when made in time is not caught by Mitchell even if the court can only entertain the application when the deadline has since expired.
“It is not a case about default and does not touch or vary Mitchell one iota. What caught my eye was that Sir Rupert went out of his way to praise the Lloyd decision of Turner J who imposed a severe sanction which the innocent party had never sought (in MA Lloyd & Sons Ltd v PPC International Ltd [2014] EWHC 41 (QB)). Jackson LJ also confirms the tough spirit enshrined in the new [CPR] 3.9. It is the first real Jackson reforms case he has sat on.”
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