DECISION OF THE COUNTY COURT FOLOWING MITCHELL: ROMANO –v-K PAPERS (BLACKBURN) LTD

November 29, 2013 · by · in Appeals, Civil Procedure, Relief from sanctions, Striking out

The courts now have a clear basis upon which to consider applications for reinstatement following the decision in Mitchell.  The case of Romano –v- K Papers (Blackburn) Ltd an appeal heard at Manchester County Court today (29th November 2013) provides a clear example of how difficult  obtaining relief from sanctions will be.

THE CASE

Romano was an industrial deafness case issued in January 2012. A defence was filed and, to allow the parties to consider settlement, the court made an order staying the action until the 21st February 2013. In the meantime the firm acting on behalf of the claimant went into administration. The solicitors acting for the administrator wrote to the court and the court extended the stay until the 17th June 2013 with the order concluding “at which time and date Claimant’s claim will stand struck out automatically.”

THE DEFAULT

The claimant solicitors had a change of staff. The new solicitor read the order on the 18th June 2013 and made an application for relief from sanctions on that day.

THE HEARING BEFORE THE DISTRICT JUDGE

The application for relief was heard by telephone by the District Judge who refused the application stating that the fault lay wholly with the Claimant’s solicitors and, in the new regime, relief from sanctions should not be granted.

THE APPEAL

Permission to appeal was refused by the District Judge but permission was given by the Circuit Judge. The appeal was heard by HH Judge Gore QC.

ARGUMENTS ON THE APPEAL

The original arguments were wide ranging. However following the decision in Mitchell  -v- News Group Newspapers Ltd [2013] EWCA Civ 1526 the Claimant’s arguments were confined to two issues:

1.            That this default came within the “paragraph 40” guidance in Mitchell in that the Claimant “narrowly missed a deadline”. That the default of one day was not substantial and relief from sanctions was sought properly.

2.            That the case was different to Mitchell in that the claimant in that case could still continue with his case (the default only had an impact on costs). Consequently article 6 rights were engaged. Something not considered in Mitchell.

(It was conceded that the Claimant could not bring themselves within the “second” grounds in

Mitchell in that there was no “excuse” of the type envisaged for that type of relief to be granted).

THE JUDGMENT

The judge rejected both arguments and dismissed the appeal.

1.            The judge did not read the Mitchell decision as reading that “near misses” would be overlooked in all cases.

2.            If a narrow miss had consequences which involved using the resources of the court this was a different matter.

3.            In the current case the default had led to the need for a hearing that may not have been necessary. The parties could have agreed directions when the stay was lifting. If they had used the “template” directions then it is likely that these would have been approved by the court as an administrative act.

4.            The default was not a “trivial” breach of the rules, even though the delay was one day.

5.            The Claimant had conceded that the “good reason” argument could not be put forward. That was a concession rightly made.

6.            In Mitchell the Court had referred to the decision in Hashtroodi –v- Hancock [2004] EWCA Civ 652.  The Judge (that is Alan Gore QC) had been leading counsel in that case and had made similar submission in relation to Article 6 to Dyson L.J. (as he then was). The response was that given the nature of the error the claimant had a cast iron case against his own solicitors and was not, therefore, deprived of a remedy.

7.            If there was no good reason for the default then the Claimant had a cast iron case against his solicitors and this provided the answer to the Article 6 submission.

8.            It was right to say that Mitchell could be distinguished because the claimant’s right to a hearing was not lost in that case.  However the Article 6 point was answerable.

9.            Finally it had not been shown that the District Judge had erred.  This was a case management decision within his discretion and there were no grounds for the appellate court to interfere with that decision.

(Gordon Exall, Zenith Chambers, represented the Claimant.  Ivan Cartwright, Ropewalk Chambers,

represented the Defendant.)  (This summary is based on my own note of the judgment).

DISCUSSION

This case shows the major difficulties in obtaining relief from sanctions even under the “first” limb of

the Mitchell test. It is also shows the difficulties of maintaining an Article 6 argument.  The default

was one day and the application for relief immediate and still the application failed.

RELATED POSTS

“SURVIVING  MITCHELL”

If nothing else the decision should help persuade litigators to attend the “Mitchell Survival Course” on the 9th December.  At the very least you will be supporting Crisis at Christmas  http://civillitigationbrief.wordpress.com/2013/11/28/litigation-after-mitchell-a-20-point-survival-guide/

Tags: , , ,