Civil Litigation : Mitchell Case

On 4th July 2014 the Court of Appeal handed down a judgment of significant importance to all those who practice civil litigation.

The case in question concerned three combined appeals (Denton v T H White; Decadent Vapours v Bevan; Utilise v Davies) which placed the judgment in Mitchell v NGN under scrutiny. The Law Society and the Bar Council were invited to intervene.

The significance of the judgment is that it has modified the applicable test for obtaining relief from sanction under CPR Part 3.9 as set out in the case of Mitchell v News Group.

The Court of Appeal recognised that Mitchell had been “misunderstood and is being misapplied by some courts”. Some judges were “adopting an unreasonable attitude to rule 3.9(1)”. Thus they proposed to “restate the approach that should be applied”.

The Court determined that from now on Judges should address an application for relief from sanctions in three stages:

  1. The first stage is to identify and assess the seriousness and significance of the individual failure to comply.
  2. The second stage is to consider why the default occurred.
  3. The third stage is to consider “all the circumstances of the case so as to enable it to deal justly with the application”. In so doing the court should place particular importance to the two factors set out in CPR Part 3.9.

Whilst continuing to emphasise that there was to be a new “culture of compliance”, the Court also stressed that parties who failed to cooperate in agreeing extensions or who “opportunistically and unreasonably oppose applications for relief from sanctions” will be heavily penalised in respect of costs.

The effect of the Court’s decision will no doubt be welcomed by most practitioners. Whilst the need for litigants and their lawyers to comply almost always with civil procedure rules and order certainly remains intact there should now be more leniency in a court’s treatment of a Mitchell application. If an otherwise well-run case runs into an unexpected difficulty, there is now a greater degree of flexibility, firstly by use of buffer orders to agree an extension of time, and secondly by the fact that there should now be a somewhat greater opportunity of getting relief under the new test.