Stories abound in relation to the court’s attitude to matters after Mitchell. Below is an e-mail kindly copied to me by David Kirkham, from a London Barrister.   It highlights the very real risks involved. The story tells itself.

“I was acting for the Defendant in a very straight forward FT RTA.

 Matter was listed for trial yesterday and all directions had been complied with, save that the day before trial the bundles hadn’t arrived (should have been 3 clear days). DJ, made an order of his own volition vacating the trial and listing it for CMC instead. C’s sols had the bundles hand-delivered at midday the same day when they found out what had happened.

 Everyone turned up yesterday fully prepped for a trial in any event. However, when I actually got to see the order vacating the trial I made an application (to a different DJ) to strike out the Claimant’s case for failing to comply with the direction in relation to the bundles, citing amongst other stuff the Mitchell case. We could easily have proceeded with the trial.  The DJ was persuaded and struck out C’s case, awarding me (D) full costs, leaving C’s sols facing a nailed on negligence claim.

 I think we must warn solicitors, if they don’t realise already, to be HYPER vigilant, and prepare ourselves for a lot of prof neg cases”



  1. DOUG Green · · Reply

    Sheer lunacy

  2. Barry Chapman · · Reply

    How many times have I turned up at Court, “Sir, have you read the papers?” 10 minutes later adjourned for Judge to read the papers.or “have you read so and so on your file, sir “Errr… can’t find the court file!!”. They make mistakes or get things wrong but who pays for it. Usual answer from Court ups and downs of litigation!! All seems down to me!!

  3. I suspect that with very careful scrutiny of the actual facts this case might be capable of being confined to those cases where the default causes some actual harm, such as wasted hearings. It also demonstrates the need for candour with the courts when a party’s representatives are in difficulties and to do so before any time or other impediment kicks in. Otherwise we will return to the dark ages of procedure taking precedence over justice.
    Careful reading of the judgement shows there were some unhelpful facts in this case that obviously undermined the appellant’s case. It is certainly harsh justice but hopefully an example that will not readily translate into being applied on a daily basis every time a deadline is not met.
    It is noteworthy that litigants in person are not caught by the cost budgeting rules. I have noticed this when doing public access cases. There is an argument therefore for letting parties litigate in person, something the CA seems very comfortable with. Even if they are assisted by counsel directly and perhaps paralegals (presumably even if supplied by firms of solicitors who do not formally go on the record). But is this really what the Jackson reforms – and going further back the Woolf reforms – intended? I suspect not.

  4. Shouldn’t we all be agreeing not to make such draconian applications? What goes around comes around. We all agree how unfair Mitchell was, and we should take a united approach against it?

  5. HampshireLawyer · · Reply

    The thought of agreeing not to make such draconian applications had occurred to me, nly to be immediately discarded. We must act in our clients’ interests, which will include making such applications.

  6. is it sheer lunacy? I would think that for the rates solicitors charge they could actually do their job and 1. read orders and 2. comply with them. It really isn’t rocket science. And if you can’t comply, apply to vary. If this is beyond you, get another job.

  7. I’m a bit confused by the summary given. What did the original order say? Did it provide for a sanction in the event that the bundles were not filed? Did the order vacating the trial specify a sanction? It sounds like there were no sanctions imposed in the orders and that the application made at the CMC was really an application to strike out.

    It’s only a nailed-on negligence claim if they don’t apply for or get permission to appeal.

  8. The summary was taken from a note provided by the barrister who represented the defendant. I have spoken to him and there was no peremptory order. The case was struck out because of a breach of the order. This was not an application made at the CMC but on the morning of the trial (when the trial judge had, in fact, the bundles well in advance). I am not sure about the position in relation to an appeal. I know that when I first reported the case I had one barrister contact me by twitter to say that he had had an identical experience – with the case being struck out on the morning of the trial because the bundles were delivered late, even though the judge had them in advance.
    Tim I am impressed by your diligence – working (or thinking about work) at 11.44 pm on Christmas day!

  9. If you had had my Christmas Eve, Gordon, you would have been escaping by reading blogs this on Christmas Day. I hope you were having more fun than I was.

    As far as the Mitchell fiasco is concerned, I am old enough to remember that you were the font of all knowledge on Order 17 Rule 11. That eventually died a death and Mitchell will in due course do the same. The chaos and confusion which will ensue in the meantime is, however, unforgivable.

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