Litigation Update

July 18, 2014 9:01 am Published by

The case of Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 had a heavy impact on litigation. In short, this case raised the bar in relation to compliance with court deadlines. If a Court deadline was missed, it could lead to a case being struck out unless an application was made seeking relief from sanctions. There was no leeway for the parties or their solicitors to agree an extension. This draconian approach was seen as taking the Jackson reforms which were introduced in April 2014 to their extreme. The idea behind the Jackson reforms and Mitchell, was to streamline the Court process by seeking to ensure that deadlines were met and thereby avoid wasted Court time and delay. What it didn’t account for was that by removing any discretion between the parties to the litigation to agree extensions of time or amend the timetable to be flexible, there would be a rise in applications for relief from sanction and in gamesmanship between lawyers seeking to make life difficult and try and get their opponent struck out.

There followed further cases that built on the Mitchell decision. Times were looking bleak or more accurately expensive for those who could not comply with the Court timetable. Ironically, to those regularly in Court, it appeared that even Judges became tired of the increase in trivial matters such as the need for short extensions of time. An already stretched Court service began to creak with the extra workload made worse by government cuts.

There then came an amendment to the Court rules in the form of the Civil Procedure (Amendment No.5) Rules 2014.  This amended the Court rules (rule 3.8(4)) to allow the parties to agree a 28 day extension provided certain criteria were met. This was welcomed by most.

On 4 July, came the eagerly awaited decision in the case of  Denton & others v TH White Ltd & others [2014] EWCA Civ 906. This case sets out a 3 stage process for how Courts should consider applications from relief from sanction. The first question to be asked is whether the breach of the rule, practice direction or court order leading to the sanction was ‘serious or significant.’ Seriousness is to be judged from the perspective of not only the litigation in question but litigation in general i.e. its impact on other Court users.

If the breach is serious or significant, the next question is whether there was a good reason for it. If there was no good reason, the Court is not bound to refuse the application and must consider all the case’s circumstances, with a focus on the need to conduct litigation efficiently and proportionately and to enforce compliance with court rules and orders. The Court of Appeal does not set out what reasons or circumstances are relevant. There is a reference to prompt applications for relief and other breaches of orders being considered.

Mitchell remains good law and the parties must still abide by Court rules and deadlines. However, with the new Court rule amendment to rule 3.8(4) giving the parties the opportunity to agree a 28 day extension, and with the decision in this case, it is clear that the Courts will not tolerate the gamesmanship which has made a resurgence in the Mitchell era. The parties must abide by the timetable as strictly as they can, and must still apply for relief from sanction if there is going to be a problem, but there may be costs consequences for those that do not agree an extension where the above test is easily satisfied and is of little consequence to the overall conduct of the litigation.

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This post was written by Graham