SURVIVING MITCHELL 11: BE PROMPT: BE VERY PROMPT
Two recent cases have emphasised the importance of a prompt response to procedural issues. Anything other than “promptness” courts danger with the courts. The duty to act “promptly” does not just apply to making applications for relief from sanctions. A prudent litigator needs to be prompt in relation to every aspect of litigation.
PROMPTNESS IN APPLYING TO HAVE JUDGMENT SET ASIDE
The case of Samara –v- MBI & Partners EWHC 563 (QB) has been considered before. It has been, I suspect, much misunderstood. This was not a case about the criteria for setting judgment aside but related to delay in setting the judgment aside. The requirement for the court to consider whether the application was made “promptly” is a central part of CPR 13.3.
“(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.
(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.”
A MANDATORY OBLIGATION
Note that this is a mandatory obligation. The court “must” have regard to the question of whether the application was made promptly.
In Samara it was held that:
- The delay (of more than a year) could not be considered to be prompt.
- The new, more robust, Mitchell criteria applied to applications under 13.3 in the consideration of what was “prompt”.
- In any event an identical conclusion (that the application to set aside was refused because it was not made promptly) would have been made under the previous procedural regime.
PROMPTNESS IN INSTRUCTING A NEW EXPERT
Similar dangers about the need to act promptly can be seen in the case of Clarke –v- Barclays Bank  EWHC 505 Ch, discussed in an earlier post. The claimant knew, for several months, that it required a new expert but took the deliberate decision not to reveal this to the court or the defendants.
“In my judgment, the balance of justice as between the parties comes down firmly in favour of refusing the Claimant’s application for permission to rely upon the new expert. He has only himself to blame for his predicament – he gambled that he could settle the case on a basis which he knew to be false, he has lost the gamble and he must make do with the only conceivable theoretical justification for the non-disclosure (which I derive from his Counsel’s submission I set out in paragraph 11 above), namely that he was always going to fall back on the Dall report but without Mr Dall. That is where I see the justice of this case. I would decide the case on that basis but if necessary I would add that it is reinforced in my judgment by the Mitchell guidance”
IT IS UNWISE (IF NOT POSITIVELY FOOLISH) NOT TO BE PROMPT
Both the Samara and Clarke cases involve someone taking a positive decision not to act promptly. In Samara the defendant knew about the judgment against it for some time; in Clarke the claimant knew, for many months, that its expert was not going to be available to give trial. If the Mitchell criteria are unforgiving to those who are guilty of “well-intentioned” incompetence they is likely to be merciless to those who deliberately fail to act promptly or delay as part of a strategic decision.
IN SUMMARY: SURVIVING MITCHELL
- Do it all.
- Do it now.
It is not just applications for relief from sanctions that need to be made promptly. Any application to vary the rules, or timetable, is likely to be subject to Mitchell type strictures. (I know this is far easier to write than to do. However I am reflecting the demands of the courts and the relevant case law.)
OTHER ARTICLES IN THE SERIES
The main 10 points in the earlier posts on surviving Mitchell are recapped here.
Surviving Mitchell a Practitioners Guide 1 – Know what happened and how it could have been avoided
Surviving Mitchell a Practitioners Guide 2 – Assume every order is a peremptory order
Surviving Mitchell a Practitioners Guide 3 – Make an application before it is breached
Surviving Mitchell a Practitioners Guide 4 – be careful when agreeing variations of directions
Surviving Mitchell a Practitioners Guide 5 – can you even agree extensions of time ?
Surviving Mitchell a Practitioners Guide 6 – you gotta have plan
Surviving Mitchell a Practitioners Guide 7 – make sure your witness statement proves your case
Surviving Mitchell a Practitioners Guide 8 – use pre action protocols and practice directions
Surviving Mitchell a Practitioners Guide 9 – agreements to extend time again !
Surviving Mitchell a Practitioners Guide 10 – agreements to extend time yet again
CLT Course on “surviving Mitchell”
Past Posts on Surviving Jackson