The 'Mitchell' Reforms

When the Jackson reforms came into force in April 2013, it was proclaimed they would bring about a substantial shift in the way in which litigation was conducted and would improve the culture of litigation for the better.

A year on, this 34th issue of Insight (i) provides a roundup of the key practice points in relation to sanctions and relief from sanctions that stem from the Jackson reforms (and specifically the Mitchell case, hence the title of this issue), (ii) considers the future of Mitchell and (iii) concludes by asking whether the Jackson reforms have delivered their stated aims as far as sanctions are concerned.

Mitchell

Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 (see http://www.fenwickelliott.co.uk/files/insight_ issue_30.pdf for a detailed analysis of the case) dealt with the practical application of the new CPR 3.9 which emphasises the need for litigation to be conducted efficiently and at proportionate cost, and the need to ensure compliance with court rules, practice directions and orders.

In Mitchell, the Court of Appeal confirmed that, going forward, the relevant sanction for any breach of a court rule would be applied unless the court order or rule that had been breached was trivial, or there was a "good reason" for the breach (such as if a party or its solicitor had suddenly been taken seriously ill).

Key practice points

Trivial breach

Narrowly missing a deadline but otherwise fully complying with its terms may render a breach trivial: Adlington & Ors v ELS International Lawyers LLP (in Administration) [2013] EWHC B29 (QB)

The claimants were seven members of a group action. They had been required to serve and file individual Particulars of Claim by a given date and the sanction for non-compliance was that their claims would be dismissed. The claimants failed to comply with the order as they were either abroad or otherwise away from home and were not in a position to sign and return the Particulars of Claim in time to meet the court order for service.

The claimants' claims were dismissed and they applied for relief against sanctions. Oliver-Jones QC granted relief and noted that the relationship between justice and procedure had not changed so as to transform rules and rule compliance into tripwires. The claimants' solicitor was not aware of the fact that his clients were away, and their holiday arrangements were outside of his control. The Particulars of Claim were ready but had not been signed by the deadline, the deadline had only been missed narrowly, and the application for relief had been made promptly. Accordingly, neither party had suffered any adverse consequences as a result of the breach of the order.

Narrowly missing a deadline but otherwise fully complying with its terms may render a breach trivial Part 2: Wain v Gloucester County Council & Others [2014] EWHC 1274 (TCC)

Here HHJ Grant QC had to consider the position of the fourth defendant who was one day late in filing her costs budget, so that instead of having been served seven clear days before the Case Management Conference, it was in fact served six clear days before the CMC. The Judge said that this breach was not a trivial one. The delay was of one day in the context of a time period or frame of seven days. He said that the seven-day period, namely for filing or serving a costs budget, was usefully to be compared with the three-day period for service of an application notice before its hearing. He noted that the claimant had said that it hade not suffered any prejudice by reason of the delay of one day. Further the parties were all able to deal with the topic of costs management at the CMC, notwithstanding the fact that the fourth defendant served her costs budget with only six clear days rather than seven clear days before the hearing. Finally, unlike...