SURVIVING MITCHELL A LITIGATOR’S GUIDE: A 10 POINT RECAP OF KEY POINTS TO DATE (WITH 10 MORE TO FOLLOW).
Cases on the Mitchell principles are reported almost on a daily basis. It is difficult to keep track. Here I recap on the key points of surviving Mitchell. I am sure there are many more to come. Here are 10 of the key points to date with 10 more to follow.
1. DO THINGS ON TIME
This is far easier to say than do, I know. However the reality is that time is of the essence in modern litigation. If you don’t or can’t comply with any direction apply for an extension in advance of the date of breach unless you have a court order which expressly allows you to agree to extend time.
2. MAKE THE MOST OF THE PRE-ACTION PROTOCOL
Here I can simply refer everyone to Kerry Underwood’s blog on this topic.
3. WHEN YOU ISSUE HAVE A PLAN
You cannot afford (and I mean this literally) to be involved in litigation that has no clear plan. The plan may have to be altered however it is prudent to write it down.
(1) As to what you want to achieve.
(2) As to what you need to achieve those ends.
(3) As to how much it is going to cost.
Litigation cannot meander or stall. You have to be ready to take the action to trial, know the steps required and be fully prepared when you get to trial. (Rather than having conferences with counsel in the week before trial, for instance, it is far more prudent to have a conference in the months before issue).
4. SERVE PROPERLY AND PROMPTLY
Another obvious point I know. However the rules relating to service are clear and, every few months, we see reports about another claimant coming to grief because of problems with service.
(1) Be clear as to who you are serving.
(2) Be clear as to where you are serving.
(3) If in doubt consult the rules.
5. GET YOUR COSTS BUDGET TO COURT ON TIME
(1) Be certain about when you have to serve and file the costs budget.
(2) Follow the rules scrupulously.
(3) Remember that you have to file a costs budget in Part 8 proceedings (and the court won’t tell you).
6. ASSUME EVERY ORDER OF THE COURT IS A PEREMPTORY ORDER
Remember that, in Mitchell itself, there was no rule or practice direction that imposed a sanction on the parties for failing to file a costs budget on time. The Court of Appeal upheld the Master’s decision to impose the penalty of the costs budget comprising only of court fees. Assume this is the case with your directions.
7. DON’T ASSUME YOU CAN AGREE EXTENSIONS OF TIME WITH YOUR OPPONENT
(i) The law appears to be that you cannot voluntary agree to extend directions.
(ii) If you want to agree extensions get this into a court order.
(iii) It is possible to get the court to agree to the parties extending time, in an order for directions,
even in a non-clinical negligence case (in most parts of the country).
8. INCORPORATE THE POWER TO EXTEND TIME BY CONSENT IN COURT ORDERS
9. BE WARY OF SERVING BY E-MAIL
As we have seen a party has to opt in to accepting service of documents by e-mail.
(i) Cases have come to grief because service by e-mail is not proper service.
(ii) If serving by e-mail is permitted there is a duty on the sender to check that the proposed e-mail is not too big.
(iii) It is doubtful whether Precedent H can be lodged at court by e-mail.
(iv) An e-mail is not deemed to arrive at court until it is received.
10. GET THE TRIAL BUNDLE TO COURT ON TIME
We have several anecdotal (but reliable) reports of actions being struck out on the morning of trial because the trial bundle was served late. Read the rules and read the directions.
TEN MORE TO COME
These are the first ten. I will deal with further (no less important) points next week.