SURVIVING MITCHELL 17: MAKE ANY APPLICATION BEFORE DEFAULT AND OBTAIN REALISTIC DIRECTIONS

It is no coincidence that Rule 17 is identical to Rule 3.  In fact I could easily, and without apology, repeat this principle as rules 10 – 20.  If you cannot comply with a court order, direction or rule then apply in advance for an extension of time. Here we look at that issue again and also the need to avoid problems by ensuring that the directions made are realistic so we can avoid, if possible, having to seek extensions.

AN APPLICATION IN ADVANCE IS TREATED WHOLLY DIFFERENTLY TO AN APPLICATION MADE AFTER BREACH

This was considered in detail in the earlier post dealing with the decision in Kaneria. Whilst an “in-time” application still has to to justified it is not subject to the Mitchell criteria and the court s considers all aspects of the overriding objective with no particular principle being paramount.

MAKE SURE DIRECTIONS ARE REALISTIC IN THE FIRST PLACE

However the one matter that I would add is that the parties should do their best to ensure that the directions are realistic in the first place.  In the Jackson Report itself it was made clear that effective case management is not about setting unrealistic timetables.

“The conclusions to which I have come are as follows. First, the courts should set realistic timetables for cases and not impossibly tough timetables in order to give an impression of firmness” 

(See the post  on the Jackson Report and case management )

The emphasis is on realistic timetables not impossible ones.

A CHECKLIST TO ENSURE THAT A REALISTIC TIME TABLE IS DRAWN UP

Consider:

• The extent of the disclosure that will be required. Do you have the documents (or access to the documents) now?
• Whether Practice Direction 31B applies (disclosure of electronic documents). If so how long will it, realistically, take to comply?
• Whether you have witness statements to hand.
• What witness statements are required.
• Are the witnesses readily available?
• Are any of the witnesses abroad or likely to be out of reach?
• Are the experts likely to be available? (I have lost count of the numbers of experts who have vanished off to sunny climes for months on end).

In short have a clear idea of what a realistic timetable is. If necessary you should be able to justify the periods sought to the judge. If there are any problems in relation to the timetable you could remind the judge that Jackson reforms are  not about appearing firm it is about setting realistic timetables.