MITCHELL: THE COMMENTARY CONTINUES
The commentary on the fallout of the Mitchell decision continues apace. One of the most interesting comments, however, comes from Sir Henry Brooke, former Lord Justice who tweets at @HenryBrooke1. Here we look at those observations and other links to commentary on the Mitchell decision.
THE COURT OF APPEAL WAS APPLYING ESTABLISHED PRINCIPLES
Henry Brooke was responding to the critique of the Mitchell decision in the UK Human Rights Blog at http://ukhumanrightsblog.com/2013/11/27/plebgate-and-costs-budgets-the-sun-off-the-hook-for-big-bucks/ he tweeted that the Court of Appeal decision in Mitchell was clearly right and referred to his own judgment in Thomson –v- O’Connor  EWCA Civ 1533, in particular paragraphs 17 and 18:
“17. The Civil Procedure Rules, with their tough rules in relation to requiring compliance with court orders, were introduced to extinguish the lax practices which existed before those rules were introduced whereby parties’ solicitors often regarded directions given by the court as so much waste paper, extended time unilaterally without approaching the court, reached agreements allowing each other plenty of time without approaching the court, and made it virtually impossible for courts to organise their lists effectively. The Civil Procedure Rules now require the parties to help the court to further the overriding objective (CPR 1.3), and in my judgment Judge Faber was entirely justified to hold that both parties were exceptionally culpable, given that the problems arose over a jointly appointed expert, in not informing the court of the problems which were bound to lead to delay on the trial on the assessment of damages on the counterclaim because they knew perfectly well that they did not have a valuer who was capable of attending court on 16th March, and they had known that for all practical purposes ever since the trial date was identified. First, the third valuer was laid off and in any event was not able to attend on that day; then the fourth valuer was not acceptable; and finally the fifth valuer made it clear from the outset that he would not be available on 16th March.
18. The question then arises should the court interfere with Judge Faber’s order or did it fall within the wide ambit of the discretion which was available to her? In my judgment this court should do everything in its power to support the authority of the judges at the coal face who are using their professional skills and the authority that they possess to ensure that litigation solicitors do not go back to the bad old days that existed before the Woolf reforms were introduced. There are already plenty of indications that there is now a tendency for solicitors to go back to those bad old days when they ignored the timetables and directions of the court, forgetting that these are orders of the court which are there to be obeyed.”
So warning shots have been fired for at least 8 years. (My analogy [and grammar] not
Litigation Futures have a series of responses at http://www.litigationfutures.com/news/mitchell-costs-ruling-reaction
And Neil Rose’s blog on the issues is at http://www.litigationfutures.com/news/mitchell-costs-ruling-reaction
The previous post at http://civillitigationbrief.wordpress.com/2013/11/27/mitchell-key-points-of-judgment/ has a series of links to related blogs and articles. (I am adding to this list all the time and, welcome others. I have added four new links in the past 12 hours).
The Thomas -v- O’Connor decision can be found at http://www.bailii.org/ew/cases/EWCA/Civ/2005/1533.html