THE MITCHELL CRITERIA AND THE CHOICE OF JUDGE

Mediatelegal

The case of Mitchell featured in the decision of Mr Justice Turner in Biljani -v- Unum Ltd[2014] EWHC 27 (QB) .  An application for the matter to be listed in front of a High Court judge was refused, part of the reason being the use of court resources.

BILJANI: THE FACTS 

The claimant was bringing an action against the defendant in relation to payments under an income protection policy. At a case management conference the matter was listed before a Category B judge.

The matter was listed before the Recorder of Birmingham and the claimant objected, stating that the action should be heard by a High Court Judge.

The matter was listed for trial and the claimant did not attend.  A peremptory order was made that unless she attended the action would be struck out. The claimant appeared in the afternoon and the action was put over to the following day. The following morning the  claimant  made an application to Mr Justice Turner asking that the matter be re-listed.

THE DECISION: NEED FOR CERTAINTY IN CASE MANAGEMENT DECISIONS

The judge found that the appropriate application would have been an appeal against the original directions, where the matter was stated as suitable for a Category B judge. He observed.

  1.  In J (A Child) v Smith (Deceased) [2001] EWCA Civ 1264 the Court of Appeal considered the position where a party had attempted to persuade a court at first instance to give case management directions which were inconsistent with the directions which had been made by a different court at an earlier stage in the litigation. Laws L.J. held at paragraph 22:

 “There are, as was submitted in the respondent’s skeleton, clear and detailed procedures for bringing appeals against interlocutory orders. These are not mere technicalities. They exist to achieve finality and certainty within the processes of civil litigation. If they are ignored by litigants who prefer to air their procedural points all over again at a later case management conference and that kind of action were sanctioned by this court, the aims of the Civil Procedure Rules would be significantly undermined. We would have uncertainty and repetition, not clarity and finality. Of course if there were a true change of circumstances then in my judgment the flexibility which the CPR commend would plainly allow a change of view as to the procedural orders which should be made.”

  1. In this case, no “true change of circumstances” having been relied upon, the question arises as to whether it is open to the claimant to appeal the order of Master Leslie to this court. 
  1. It would have been open to the claimant to seek to appeal the order of Master Leslie to assign this case to Category B. However, the following factors must be considered:

  i) The relevant order was a case management decision; 

ii) The time limit on appealing the decision was 21 days and thus expired about ten months ago;

iii) The claimant needed permission to appeal;

iv) None of the procedural formalities imposed by CPR 52 have been observed.”

THE SUBSTANTIVE DECISION: APPLICATION REFUSED

The judge observed:

27.Ultimately, this court must be guided by the terms of the overriding objective in their present from:

“1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

28.Fresh emphasis has, since the introduction of the Jackson reforms, been placed upon the importance of compliance with procedural rules and orders of the court from the perspective not only of the parties but from that of the court itself. Reference can be made generally to the observations made by the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537.

29.In the present case, there was no objective justification for the lengthy delay in challenging the decision of Master Leslie. The delay was rendered more serious by the fact that the claimant’s challenge was raised on the afternoon of the day before that upon which the hearing was to commence. In consequence, a day of court time has already been wasted. The court’s resources are both precious and scarce and will not readily be expended to alleviate a party of the consequences of serious and unjustified procedural default. It is clear from her emails that the claimant has been working under the mistaken impression that she is entitled to dictate to the court which level of judge should hear her claim. On the contrary, that decision is one for the court and in this case the decision was made ten months ago and has not been challenged until the eve of the date of hearing.

CONCLUSION

30 .Applying the balancing act required by the overriding objective and taking into account the factors to which I have referred in this judgment, I am left in no doubt whatsoever that I should not interfere with the categorisation of this case or the fact that it has been listed before the Deputy Judge. Indeed, even if the matter had fallen to be determined under the older and more indulgent procedural regime I would have come to the same conclusion. In the circumstances, I decline to make any substantive order in response to the claimant’s application. The matter thus remains listed to be heard before the Deputy Judge today at 10.30am.”

FINDING THE CASE

The case can be found at http://www.bailii.org/ew/cases/EWHC/QB/2014/27.html