SURVIVING MITCHELL A PRACTITIONER’S GUIDE : 1 KNOW WHAT HAPPENED IN MITCHELL AND HOW IT COULD HAVE BEEN AVOIDED

December 10, 2013 · by gexall · in Applications, Avoiding negligence claims, Civil Procedure, Members Content, Relief from sanctions

The decision in Mitchell is already having a major impact on day to day litigation. This is the first of a series of posts which looks at the Mitchell decision and deals with the practical steps that practitioner’s must take to “survive” in a post-Mitchell world. LOOKING AT THE FACTS Although the c...

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Tags: Appeal, costs, Court of Appeal, Mitchell

4 Responses

robertpettitt · December 11, 2013 at 13:34:01 · →

Does your survival point correspond with the facts? I’m looking at this in a bubble with only the facts listed above.

The issue (in the bubble) is a failure by counsel to provide figures promptly and a failure by the solicitor to send a budget in the absence of the figures. The solicitor had options in terms of finalising the budget in the absence of figures from counsel and, arguably, ought to have pre-empted the need for such figures at an earlier stage (e.g. on issue of proceedings).

Of course, if you are too busy or it is more economical or more efficient to do so, then outsource.

However, in the bubble, outsourcing wouldn’t have necessarily helped the solicitor get counsel’s figures earlier.

It appears to be a combinaiton of poor planning and poor decision making.
gexall · December 11, 2013 at 15:38:41 · →

A problem here was the difference in the explanation given to the Master that they were awaiting counsel compared with the explanation given at the hearing “overwork”. The latter explanation was expanded upon in detail at the relief for sanctions hearing. The point being made was that the Defendant sent Form H out and (arguably) lodged it in time. The Claimant did it themselves, were overworked, did it late and now will not get paid. The judgment suggests that the Master did not accept “waiting for counsel” was ever the correct excuse.
robertpettitt · December 11, 2013 at 20:13:47 · →

Ah, that’s true.

it’s hard to know who to believe sometimes!

Bring less than fully honest couldn’t have done them any favours.
gexall · December 11, 2013 at 23:49:12 · →

Honesty is always the best policy.Indeed it is the only policy. No other option is tenable (or ethical). The real problem is a litigator being honest about an honest mistake can be characterised being guilty of “well intentioned incompetence”.