Comply – Or Pay The Consequences

Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1537

In the midst of the now infamous 'Plebgate', Andrew Mitchell MP commenced proceedings against NGN for defamation (in respect of a Sun Newspaper article in September 2012). Unfortunately for Mr Mitchell and his solicitors, those proceedings have taken on their own infamy in the world of civil procedure.

The case is subject to CPR51D (the Defamation Proceedings Costs Management Scheme), under which the parties were obliged to prepare and file costs budgets not less than 7 days before the Case Management Conference (CMC) - not dissimilar to that which now applies to most multi-track cases.

Mr Mitchell's solicitors failed to comply with CPR51D, instead filing their client's budget the night before the CMC. At the CMC the following day, Master McCloud made an order that "the Claimant shall be treated as having filed a budget comprising only the applicable court fees". In doing so, she had regard to CPR3.14, although CPR3.14 was not directly applicable to the case (because it only came into force after the claim was issued). The Master explained that it was "an indication as to what may be an appropriate sanction for breach of the requirement to lodge a budget". The Claimant was given permission to apply for relief from what the Master accepted was a Draconian sanction.

Mr Mitchell's subsequent application for relief from sanctions was heard on 25 July and, in a very robust judgment, Master McCloud refused relief. She referred to the fact that "judicial time is thinly spread" and the need to allocate a fair share of judicial time to all litigants. She said "the CMC is not supposed to be the starting gun for proper consideration of budgeting".

The message was that the advent of the Jackson Reforms heralded a stricter approach to rule compliance. Mr Mitchell appealed.

Court of Appeal judgment

The Court of Appeal's judgment was handed down on 27 November 2013. The 18-page judgment is in two parts. The first part contains the salient points from Master McCloud's judgment, and sets out the reasons why their Lordships conclude that the Master was entitled to make the order that she did. But nearly one third of the judgment (pages 11-16 inclusive) is taken up with what their Lordships call "General comments on CPR3.9". These pages are essential reading for litigators.

In summary:

Litigation must be conducted efficiently and at proportionate cost; and Compliance with...

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