Kerry Underwood’s blog contains an interesting discussion of the apparent differences between various divisions of the Court of Appeal on the issue of relief from sanctions.  Kerry points to the decision in Abercrombie and Others v Aga Rangemaster Ltd (2013) EWCA Civ 1148shortly before the Mitchell decision where the Court of Appeal granted permission to amend which went to jurisdiction.

Kerry notes a much earlier decision:

Smith v Cropper [1885] 26 Ch D 700 where Bowen LJ said (at p. 711):

“(I)t is a well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights….  I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party.  Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.”

This contrasts starkly with the Mitchell criterial.

Kerry’s argument that the rationale in Abercrombie differs from Mitchell and can be preferred must be read.  In a tweet today he stated that a relief from sanctions application had succeeded on the basis of the Ambercrombie decision.