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PI and Civil Litigation

Law - practice - procedure

09 JUL 2017

Denton: The Court of Appeal ‘clarifies’ Mitchell

David Marshall

Managing Partner

Managing Partner, Anthony Gold Solicitors, and Chair of the Law Society's Civil Justice Committee 

For civil litigation lawyers, the last 6 months have been Kafkaesque. The Court of Appeal decision in  Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, where half a million pounds of costs budgeted were disallowed after the cost budget was filed a few days late, was interpreted as holding that huge consequences (eg claims struck out; evidence excluded, etc.) flowed from any slight (but ‘non-trivial’) errors where these were the result of human error (which was never a ‘good reason’ for relief). Stress levels soared and Professional Indemnity Insurance premiums threatened to go through the roof.

Talking to a non-lawyer friend about it all, I was met with 'So why don’t you lawyers just comply with the rules, then...'. The simple answer is that the Civil Procedure Rules were not substantially rewritten for the post-Jackson world. They were never designed for nor were fit for the purpose of absolutely strict compliance. They are littered with often previously unrecognised sanctions for minor breaches which were often obscure, inconsistent, disproportionate and unfair. Satellite litigation inevitably increased because of the potentially enormous windfalls available to parties if sanctions were imposed for technical breaches. A huge jurisprudence (only part of which is mentioned in the judgment) built up in a matter of months over what was and was not a‘sanction’, what was and was not ‘trivial’ and what was and was not a ‘good reason’.

On 4 July 2014 the Court of Appeal handed down judgment in three ‘Mitchell’ appeals, Denton, Decadent Vapours & Utilise [2014] EWCA Civ 1537.

In its judgment the Court accepted that the judgment in Mitchell had “been the subject of criticism” so “invited the Bar Council and the Law Society to intervene.” As Chair of the Law Society’s Civil Justice Committee, I was closely involved with the Society’s submissions.

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