MITCHELL: 20 KEY POINTS OF JUDGMENT

Mediatelegal

The Court of Appeal gave judgment in Mitchell -v- News Group Newspapers [2013] EWCA Civ 1537 today.  The case has been much covered. The Claimant’s application for relief from sanctions was refused.  The key points of general importance are:

1. CPR 3.9. The explicit reference to need for costs to be conducted efficiently, at proportionate costs and to enforce compliance with orders was deliberate and these considerations should be regarded as of paramount importance and given great weight.

2, It is significant that these are the only considerations which have been singled out for specific mention in the rule.

3. The requirement to consider “all the circumstances of the case” includes the requirement to deal with the matter justly.  This is a reference back to the overriding objective, which includes enforcing compliance with court orders.  These other considerations should be given less weight than the two considerations which are specifically mentioned.

4. There is a reference to the Master of the Rolls’ speech on 22 March 2013.  He stated that a tougher more robust approach necessary to ensure litigation is conducted proportionately.  This serves wider  the wider public interest.

5.  The Court expressly endorsed the approach in that speech. See http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-judicial-college-lecture-2013.pdf

6. The nature of the  non-compliance  is important. If it is trivial court will usually grant relief provided application for relief is made promptly.

7.  Thee Court will usually grant relief if there is  no more than an insignificant failure to comply with an order. For example a failure of form rather than substance,or where party has narrowly missed the deadline imposed by the order but has otherwise fully complied with its terms.

8.   The question of whether default is “insignificant” may give rise to dispute and therefore to contested applications. But this possibility cannot be excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.

9. If the non-compliance cannot be characterised as trivial then the burden is on the defaulting party to persuade the court to grant relief.

10. The court will want to consider why the default occurred.

11.  If there is good reason for it the court will be likely to decide that relief should be granted. For instance if party or solicitor does not file a document at court because of accident or debilitating illness, that may represent good reason.

12. Later developments in litigation  process could be important if they show that the period for compliance originally imposed was unreasonable.

13. Mere overlooking of a deadline is unlikely to be good reason. Solicitors cannot take on too much work and expect to persuade a court that this is a good reason for their failures to meet deadlines.

14. Applications for extensions of time made BEFORE time has expired will be looked at more favourably than applications for relief of sanctions made after the event.

15. A similar approach is taken to that in relation to extensions  of the claim form in Hashtroodi -v- Hancock [[2004] EWCA Civ 652. The weaker the reason the less likely the court to grant  an extension.

16. On an application for  relief from sanctions the starting point should be that the sanction has been properly imposed and complies with the overriding objective.

17 Relief from sanctions will now be granted more sparingly than  previously.

”Well intentioned incompetence for which there is no good reason should not usually attract relief from sanctions.”

18. The  Court can consider ‘old’ CPR 3.9 factors but the most  important  factors are the need  for  litigation  to be conducted efficiently, at proportionate costs and to ensure compliance  with rules, practice directions and court orders

19. The court  should not  focus exclusively on doing justice between the parties in the individual case but apply the new approach which seeks to have regard to a wide range of interests.

20. “In the result, we hope that our  decision will send  out a a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply  with rules, practice directions  and orders. If this happens, then we would expect  that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will  become  a  thing of the past”.

FINDING THE CASE

The case is reported at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2013/1537.html&query=mitchell+and+news+and+group+and+newspapers&method=boolean

ADVERT (FOR A GOOD CAUSE)

I am talking on “Surviving Mitchell: a 20 Point Plan” on the 9th December, see http://www.zenithchambers.co.uk/site/events/eventlisting/event430_4115  The proceeds go to Crisis at Christmas.

RELATED POSTS

The Mitchell case (in the context of relief from sanctions) has been discussed:

AVOIDING PROBLEMS

Mitchell emphasises the points made in the ” Jackson Survival Guide” at http://civillitigationbrief.wordpress.com/2013/08/23/litigation-after-jackson-a-10-point-survival-guide/ (and the need to go on the new “20 point: survival guide” course advertised above.

OTHER BLOGS AND ARTICLES ON MITCHELL

There has been a flurry of blogs and posts. See

My colleague Nicki Phillipson’s article at

http://www.zenithchambers.co.uk/cms/document/CA_Mitchell_Judgment_Summary.pdf

Kerry Underwoods blog at http://kerryunderwood.wordpress.com/2013/11/27/grim-day-for-justice-mitchell-considered/

The Law Society Gazette’s article is at http://www.lawgazette.co.uk/practice/experts-wriggle-room-gone-after-mitchell-ruling/5038965.article

Charles Bagot of Hardwicke Chambers writes at http://www.hardwicke.co.uk/insights/articles/ramifications-of-the-mitchell-costs-appeal

Neil Rose at Litigation Futures writes at http://www.litigationfutures.com/news/court-appeal-sends-clear-message-dismissing-plebgate-appeal

Kennedys write (with a useful list of do’s and dont’s) at http://m.kennedys-law.com/casereview/stricterapproachjackson/

HLF Law write at http://www.hlf-law.co.uk/content/plebgate-appeal-decision-restricts-andrew-mitchells-recoverable-costs-to-2000-00/

The New Law Journal article is at http://www.newlawjournal.co.uk/nlj/content/plebgate-costs-ruling-published

The Lawyer is at http://www.thelawyer.com/news/practice-areas/litigation-news/coa-rejects-plebgate-appeal-restricts-libel-costs-budget-to-2000/3013081.article

HSF comment at http://hsf-litigationnotes.com/2013/11/27/court-of-appeal-sends-clear-message-on-need-for-strict-compliance-in-mitchell-decision/

BLP at http://www.blplaw.com/expert-legal-insights/articles/cost-budgeting-whipped-into-shape-court-of-appeal-delivers-judgment-in-mitchell-v-ngn/

Bargate Murray at http://www.bargatemurray.com/archives/1726

DWF at http://www.dwf.co.uk/news/legal-updates/court-of-appeal-bares-its-teeth-on-delay

Legal Week Law at http://www.legalweeklaw.com/abstract/mitchell-news-plebgate-costs-budgets-true-jackson-reforms-19575?from=editorpick

Dispute Resolution at http://lexisweb.co.uk/blog/dr/mitchell-decision-sends-clear-message-to-litigators-says-murray-heining/?utm_source=t.co&utm_medium=socialmedia&utm_campaign=DRPSLtwitter_post27NovMurrayHeining

John Hayes at http://www.johnmhayes.co.uk/blog/mitchell-v-news-group-newspapers-yet-more-costs-budgeting-and-relief-from-sanctions-woes/

4 New Square have a discussion at http://www.4newsquare.com/files/Mitchell_v_Newsgroup_Article.pdf

Temple Garden Chambers have a discussion at http://tgchambers.com/media/74726/mitchell_note_on_judgment.pdf

The UK Human Rights Blog discusses it at http://ukhumanrightsblog.com/2013/11/27/plebgate-and-costs-budgets-the-sun-off-the-hook-for-big-bucks/

Nigel Poole QC comments at http://nigelpooleqc.blogspot.co.uk/

PI Blawg at http://www.piblawg.co.uk/post/2013/11/28/Plebgate-budgets-relief-from-sanctions-and-a-new-kind-of-justice.aspx

Pinsent Masons review the case at http://www.out-law.com/en/articles/2013/november/court-of-appeal-warns-of-change-in-culture-as-it-upholds-cost-sanctions-against-andrew-mitchell/

John Hyde argues that the decision is not as draconian as at first blush at http://www.lawgazette.co.uk/law/mitchell-ruling-is-not-quite-zero-tolerance/5038968.article

David Hart QC writes in legalweek.com at http://www.legalweek.com/legal-week/blog-post/2309813/plebgate-and-costs-budgets-the-sun-off-the-hook-for-big-bucks

Just Costs have an article at http://www.justcosts.com/component/content/article/10-news-events/livenews/266-budget-nightmares-come-true-for-solicitors

There is an article in the Insurance Times in relation to the increased costs of indemnity premiums at http://www.insurancetimes.co.uk/plebgate-could-cause-rise-in-professional-indemnity-premiums/1405948.article#

Legal Business has a discussion, with comments, at http://www.legalbusiness.co.uk/index.php/lb-blog-view/1551-no-pay-for-delay-court-of-appeal-holds-firm-on-costs-decision-in-plebgate-case

13 KBW have an article by Deidre Godwin at http://www.13kbw.co.uk/articles/andrew-mitchell-mp-v-news-group-newspapers-limited-digest-and-comment-on-judgment-of-the-court-of-appeal-(27-11-13).pdf

Hugh James have a “plebs” guide to civil procedure (their words not mine) at http://www.hughjames.com/blogs/blog_library/2013/november/a_%E2%80%9Cpleb%E2%80%99s%E2%80%9D_guide_to_procedure.aspx#.UpkNXsRdWHh

Andrew Hogan, costs barrister,  has a post “Sun wot won in” (again his words not mine) athttp://costsbarrister.co.uk/