The Court of Appeal gave judgment in Mitchell -v- News Group Newspapers  EWCA Civ 1537 today. The case has been much covered. The Claimant’s application for relief from sanctions was refused. The key points of general importance are:
1. CPR 3.9. The explicit reference to need for costs to be conducted efficiently, at proportionate costs and to enforce compliance with orders was deliberate and these considerations should be regarded as of paramount importance and given great weight.
2, It is significant that these are the only considerations which have been singled out for specific mention in the rule.
3. The requirement to consider “all the circumstances of the case” includes the requirement to deal with the matter justly. This is a reference back to the overriding objective, which includes enforcing compliance with court orders. These other considerations should be given less weight than the two considerations which are specifically mentioned.
4. There is a reference to the Master of the Rolls’ speech on 22 March 2013. He stated that a tougher more robust approach necessary to ensure litigation is conducted proportionately. This serves wider the wider public interest.
5. The Court expressly endorsed the approach in that speech. See http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-judicial-college-lecture-2013.pdf
6. The nature of the non-compliance is important. If it is trivial court will usually grant relief provided application for relief is made promptly.
7. Thee Court will usually grant relief if there is no more than an insignificant failure to comply with an order. For example a failure of form rather than substance,or where party has narrowly missed the deadline imposed by the order but has otherwise fully complied with its terms.
8. The question of whether default is “insignificant” may give rise to dispute and therefore to contested applications. But this possibility cannot be excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.
9. If the non-compliance cannot be characterised as trivial then the burden is on the defaulting party to persuade the court to grant relief.
10. The court will want to consider why the default occurred.
11. If there is good reason for it the court will be likely to decide that relief should be granted. For instance if party or solicitor does not file a document at court because of accident or debilitating illness, that may represent good reason.
12. Later developments in litigation process could be important if they show that the period for compliance originally imposed was unreasonable.
13. Mere overlooking of a deadline is unlikely to be good reason. Solicitors cannot take on too much work and expect to persuade a court that this is a good reason for their failures to meet deadlines.
14. Applications for extensions of time made BEFORE time has expired will be looked at more favourably than applications for relief of sanctions made after the event.
15. A similar approach is taken to that in relation to extensions of the claim form in Hashtroodi -v- Hancock [ EWCA Civ 652. The weaker the reason the less likely the court to grant an extension.
16. On an application for relief from sanctions the starting point should be that the sanction has been properly imposed and complies with the overriding objective.
17 Relief from sanctions will now be granted more sparingly than previously.
”Well intentioned incompetence for which there is no good reason should not usually attract relief from sanctions.”
18. The Court can consider ‘old’ CPR 3.9 factors but the most important factors are the need for litigation to be conducted efficiently, at proportionate costs and to ensure compliance with rules, practice directions and court orders
19. The court should not focus exclusively on doing justice between the parties in the individual case but apply the new approach which seeks to have regard to a wide range of interests.
20. “In the result, we hope that our decision will send out a a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past”.
FINDING THE CASE
ADVERT (FOR A GOOD CAUSE)
I am talking on “Surviving Mitchell: a 20 Point Plan” on the 9th December, see http://www.zenithchambers.co.uk/site/events/eventlisting/event430_4115 The proceeds go to Crisis at Christmas.
The Mitchell case (in the context of relief from sanctions) has been discussed:
- The Claimant’s submissions are summarised at:https://civillitigationbrief.wordpress.com/2013/11/07/mitchell-v-news-group-newspapers-outline-of-claimants-submissions/
- The Defendant’s submissions are at https://civillitigationbrief.wordpress.com/2013/11/07/mitchell-v-news-group-newspapers-outline-of-defendants-submissions/
Mitchell emphasises the points made in the ” Jackson Survival Guide” at https://civillitigationbrief.wordpress.com/2013/08/23/litigation-after-jackson-a-10-point-survival-guide/ (and the need to go on the new “20 point: survival guide” course advertised above.
OTHER BLOGS AND ARTICLES ON MITCHELL
There has been a flurry of blogs and posts. See
My colleague Nicki Phillipson’s article at
Kerry Underwoods blog at http://kerryunderwood.wordpress.com/2013/11/27/grim-day-for-justice-mitchell-considered/
The Law Society Gazette’s article is at http://www.lawgazette.co.uk/practice/experts-wriggle-room-gone-after-mitchell-ruling/5038965.article
Charles Bagot of Hardwicke Chambers writes at http://www.hardwicke.co.uk/insights/articles/ramifications-of-the-mitchell-costs-appeal
Neil Rose at Litigation Futures writes at http://www.litigationfutures.com/news/court-appeal-sends-clear-message-dismissing-plebgate-appeal
Kennedys write (with a useful list of do’s and dont’s) at http://m.kennedys-law.com/casereview/stricterapproachjackson/
The New Law Journal article is at http://www.newlawjournal.co.uk/nlj/content/plebgate-costs-ruling-published
Bargate Murray at http://www.bargatemurray.com/archives/1726
Dispute Resolution at http://lexisweb.co.uk/blog/dr/mitchell-decision-sends-clear-message-to-litigators-says-murray-heining/?utm_source=t.co&utm_medium=socialmedia&utm_campaign=DRPSLtwitter_post27NovMurrayHeining
4 New Square have a discussion at http://www.4newsquare.com/files/Mitchell_v_Newsgroup_Article.pdf
Temple Garden Chambers have a discussion at http://tgchambers.com/media/74726/mitchell_note_on_judgment.pdf
The UK Human Rights Blog discusses it at http://ukhumanrightsblog.com/2013/11/27/plebgate-and-costs-budgets-the-sun-off-the-hook-for-big-bucks/
Nigel Poole QC comments at http://nigelpooleqc.blogspot.co.uk/
John Hyde argues that the decision is not as draconian as at first blush at http://www.lawgazette.co.uk/law/mitchell-ruling-is-not-quite-zero-tolerance/5038968.article
David Hart QC writes in legalweek.com at http://www.legalweek.com/legal-week/blog-post/2309813/plebgate-and-costs-budgets-the-sun-off-the-hook-for-big-bucks
There is an article in the Insurance Times in relation to the increased costs of indemnity premiums at http://www.insurancetimes.co.uk/plebgate-could-cause-rise-in-professional-indemnity-premiums/1405948.article#
Legal Business has a discussion, with comments, at http://www.legalbusiness.co.uk/index.php/lb-blog-view/1551-no-pay-for-delay-court-of-appeal-holds-firm-on-costs-decision-in-plebgate-case
13 KBW have an article by Deidre Godwin at http://www.13kbw.co.uk/articles/andrew-mitchell-mp-v-news-group-newspapers-limited-digest-and-comment-on-judgment-of-the-court-of-appeal-(27-11-13).pdf
Hugh James have a “plebs” guide to civil procedure (their words not mine) at http://www.hughjames.com/blogs/blog_library/2013/november/a_%E2%80%9Cpleb%E2%80%99s%E2%80%9D_guide_to_procedure.aspx#.UpkNXsRdWHh
Andrew Hogan, costs barrister, has a post “Sun wot won in” (again his words not mine) athttp://costsbarrister.co.uk/