5th BIRTHDAY REVIEW 4: AVOIDING PROBLEMS AFTER MITCHELL: LIVING IN THE SHADOW OF THE BIKE

It is universally recognised that the Court of Appeal judgment in Mitchell  was a mistake.   The Master of the Rolls  stated that the decision in Mitchell decision led to a “febrile atmosphere”  leading to “unreasonable decision making”. There were 219 days between the decision in Mitchell and the “clarification” in Denton.  Here we look at the series that was written during that period of “Mitchell Mayhem” – much of it remains relevant.

“We had been persuaded that the Mitchell decision was causing difficulty and leading to unreasonable decision-making which was neither sensible nor what could reasonably have been envisaged by the rule.”

THE FEBRILE ATMOSPHERE

The fact that Mitchell led to a “febrile” atmosphere in litigation was recognised by Lord Dyson in The English Experience of Access to Justice Reform.

“The two stage approach stated in Mitchell proved difficult to apply in practice. Some courts applied it too strictly, taking the view that the triviality test meant that relief from non-compliance should only be granted in exceptional circumstances. It led some lawyers to adopt an unnecessarily adversarial approach to litigation, on the basis that if they took procedural points they might secure a tactical advantage for their clients. Parties were refusing to agree even short extensions of time for complying with time limits. Some even said that they were at risk of being sued for negligence by their clients if they behave obstructively and refuse to agree to anything.
25. In this febrile atmosphere, it was inevitable that the Court of Appeal would be asked to review the Mitchell decision.
By sticking to its guns, the court would have been consistent. But such a stance would not have served the interests of justice. We had been persuaded that the Mitchell decision was causing difficulty and leading to unreasonable decision-making which was neither sensible nor what could reasonably have been envisaged by the rule. This justified a slight modification of the earlier decision and an expansion of its reasoning to make explicit what had previously been insufficiently spelt out”

 

THAT PERIOD OF “MITCHELL MADNESS”

The high point was probably the case reported in “Case Struck out at trial for bundle being delivered late”, in which a case was struck out on the morning of the trial because the trial bundles had been delivered the morning before the trial rather than three days before. (There was no suggestion that the judge would have read them any earlier).

THE MITCHELL SERIES

There were daily reports of draconian decisions and litigants and lawyers coming to grief. Against that febrile background the 20 part series of   “Surviving Mitchell a Litigator’s Guide” was written.

MUCH OF THE SERIES  REMAINS RELEVANT

Although the series was written in the “Mitchell era” many of the points made remain relevant today. The points about agreeing extensions of time has been clarified, the remainder of the points made still stand.

THE SERIES

1. Know what happened in Mitchell and how it could have been avoided.

2. Assume every order of the court is a peremptory order

3. If you can’t comply with an order making an order for an extension before the order is breached.

4. Be careful when agreeing variations of the directions

5. The original article was can you even agree extensions of time?  We know you soon can but be very careful

6. Be ready for trial the day you issue: have a plan

7. Make sure your witness evidence proves your case

8. Use the Pre-Action Protocols to the Full

9. Was about agreeing extensions of time, again I repeat be wary even under the new rules.

10. Again considered extensions of time

11. Be prompt, be very prompt.

12. “Mitchell proof your case from cradle to grave” (courtesy of Legal Orange).

13. Read Kerry Underwood’s Rules of Survival

14. Know about credibility

15. Share the pain

16. Deal with “fish files”

17. Rule 3 repeated (without apology): make applications before deadlines and obtain realistic directions.

18. Know that 99.98% of litigators are stark raving bonkers

19. Practice defensive litigation or don’t practice at all.

20. The great big overall checklist