HAVE YOU BEEN "MITCHELLED"? THE PROBLEMS OF WITHOUT NOTICE ORDERS: A WORKING EXAMPLE
I am grateful to Simon Baskind from Cohen Cramer solicitors in Leeds for the following account of a “Mitchell” problem.
ACTION STRUCK OUT BY THE COURT FOR NO GOOD REASON
“I know we are all probably suffering from Mitchell overload but here’s another wonderful story to cheer us all up. In my 35 years odd of practice I have seen some poor law (and I speak as someone who spent time in the trenches of the costs wars) but the appalling nonsense the profession is being subjected to because of this ridiculous decision really should have us manning the barricades. Let me explain….
- On the 19th March 2013 we issued protectively out of Northampton owing to the impending expiry of the primary limitation period.
- We served the full process on the 17th July and received the defence on the 25th July. We then received the Notice of Proposed Allocation from Northampton on 22 August and Direction Questionnaires were sent in on the 12 September.
- The claim was then transferred to Uxbridge. So far so uneventful. However on the 11th October we received an order from Uxbridge advising us that the claim had been struck out for breaching Rule 7.4.2. That rule states “Where the claimant serves particulars of claim separately from the claim form… the clamant must within 7 days file a copy of the particulars…”
When I received the file from the terrified fee earner and looked over it, it seemed to me that this was simply an error on the court’s part as we had not served the particulars separately, as was confirmed by our certificate of service and by the defendants themselves who ultimately consented to our application for relief from sanctions.
I fancied all that had happened was that on transfer between courts the full file had not gone across and the particulars had not found their way to Uxbridge. However we had to deal with the hand Mitchell had dealt us. Who knows how the court would interpret what had happened.
First we had to prepare the application and speak to the defendants. We then had to explain the situation to our client but that they need not worry as we carried professional indemnity insurance. Marvellous for client relations. I then spoke to our COLP who had to assess the situation, as did the risk partner who had to notify our own insurers.
Ultimately our application was listed in January 2014, some three months after the original order. We instructed counsel and relief was granted.
Did we receive an apology from the court? No, the district judge simply referred to the fact that as no particulars appeared on the file then the initial order in the circumstances was justified.
As you can probably tell I’m a trifle miffed by this. We lost face with our client, had to report a potential claim to our insurers, suffered a three month delay in progressing the case and to cap it all it cost us unrecoverable work in progress and counsel’s fees.
If the court felt it was missing the particulars wouldn’t the more proportionate response have been to send out an “unless” order first?
And before someone mentions Singapore, you will not convince me that the state of the legal profession and the administration of justice in general there was in anyway comparable to the English legal system which we have always been told is the envy of the world. In any event, who is to say that their Mitchellisation was as crassly handled as ours appears to be?
So what to do then? I really do believe it is time for the professions’ representative bodies to notify the MOJ that enough is enough and this current round of madness is bound to end in disaster. After all (and as alluded to earlier) we have all seen where overzealous policing of rules and regulations leads to – satellite litigation, escalating costs, unnecessary delays and huge injustices”
COMMENT (FROM GE)
I have grave doubts whether Mitchell did, in fact, apply in this case. The law relating to court orders made without notice is set out in Tombstone –v- Raja  EWCA Civ 1444. The facts of that case are somewhat complex however the court today is best assisted by the Court of Appeal judgment from paragraphs 64 onwards and, at paragraph 66.
“The core element of the rules is that the party affected by the order made without notice should be notified of the order that has been made. In our view, rules 23.9 and 23.10 should be construed as applying whether or not an application notice has been issued.”
The Court of Appeal went on to consider several other important points of principle which are relevant to the current case:
(1) When there is a rule of the CPR which governs the application to set aside judgment, the application should be dealt with pursuant to that rule and not by exercising some “more general power”. (at 82)
(2) Since the introduction of the CPR the position is that applications for the setting aside of orders without notice are governed by rule 23.10.
(3) “They are determined by the court exercising the discretion given by that rule in accordance with the overriding objective. Where the order is one which affects the rights of the affected party in an important respect (a judgment is the most obvious example), it will only be in the most exceptional circumstances that the discretion will not be exercised to set aside the order.” (paragraph 84).
PRESUMPTION THAT WITHOUT NOTICE ORDER WILL BE SET ASIDE
The principle is clear. Any order, made without notice, should normally be set aside.This has not, to the best of my knowledge, been affected by the decision in Mitchell or any of the subsequent case law. The overriding objective has been amended to include a specific mention of the need for compliance with orders. However one would hope that this does not totally subsume the central aim of the overriding objective “to deal with cases justly”. Striking out a case where there has, in fact, been no default is manifestly unjust.
SHOULD THE COURTS BE MAKING SUCH DRACONIAN ORDERS ON A WITHOUT NOTICE BASIS?
My view is that Simon is correct in his complaint about the making of the order in the first place. This issue was considered by the Court of Appeal in Ryder Plc -v- Dominic James Beever  EWCA Civ 1737. This was a consideration of the discretion being exercised under the old CPR 3.9, however Smith L.J. observed that an order had been made by a party writing to the court. This informal practice was no acceptable. Further, unless orders, should rarely be made on an ex parte basis. Indeed that practice was deprecated.
“If, contrary to the view I have expressed, a court regards it desirable to make an ‘unless’ order without the issue of an application, the court should surely be slow to make such an order without giving the party affected the opportunity to be heard, as happened here. In short, I deprecate the practice followed here. The CPR are intended to make solicitors comply with orders or to face the consequences with their eyes open. They are not intended to create traps for the unwary or slightly incompetent. In my view, these circumstances are highly relevant to the exercise of the court’s discretion on the grant of relief”
In a system designed to discourage the unnecessary escalation of costs there is a major irony in the court system itself being a major source of wasteful expenditure.