“Is there not a more imaginative way to encourage parties to co-operate? Looking at some of the circumstances litigation had been utterly derailed due to satellite litigation.  This is inappropriate in 99% of cases. We need a message saying that parties should think hard before stopping proceedings for procedural points.”

Voss LJ in the course of the submissions made on behalf of the Law Society and Bar Council yesterday.


One unusual aspect of the Court of Appeal hearings on sanctions heard on Monday and Tuesday this week (all of which have been written about on this blog) is that all the advocates were given an opportunity to comment on the Mitchell criteria generally.  The advocate for the Bar Council and Law Society was given a specific invitation to assist the court in how the criteria should be construed.


We need help from you as to how you say we should modify the guidance. I am not clear as to if you are saying that we should get rid of the Mitchell guidance or supplement it or what? It will be useful if you could address this after the adjournment.”


The courts have to find an appropriate test to ensure that cases can be case managed properly but to avoid procedural points being taken. No easy task.

There have been numerous critics of the Mitchell criteria (some of them vehement critics).  However, on occasions, criticism is easy.  Constructing a test that is robust, and yet avoids procedural point scoring, is much harder.  That is why I am inviting all those who have criticised and commented over the past few months to use the comments section of this blog to put in their own test/guidelines.

I imagine that there may be some partisan suggestions (claimant’s breaches ok, defendant’s bad etc), however a civil procedure system has to try to be even-handed.


Having invited people to do it I have to have a go.

My view is that:

  • Mitchell is an appropriate test where a party has breached a peremptory order and where that order has been made on notice and the defaulting party has had notice of the order in good time before the due date of compliance (which is not something that always happens).
  • The real problem with Mitchell is that there was no peremptory order, indeed no sanction in place at all, at the relevant time.
  • Where a party defaults the court’s normal reaction should be to make a peremptory order (on notice) and to order the defaulting party to pay the costs of default forthwith.
  • Where a default is non-material, and the “innocent” party is not affected by the default but contests a hearing then the additional costs of the hearing should be paid for by the innocent party. (Subject to the discretion of the court).
  • Relief from sanctions should not be exercised  in cases where a party has deliberately breached a rule in order to gain a forensic advantage (for instance served witness statements late).
  • If any additional costs are incurred by a breach, and those costs will go over into the trial, then the defaulting party should pay those costs regardless of the outcome.

I am sure I have not covered everything.  However this is a difficult process. Which is why I am seeking the combined wisdom of the legal profession. At the very least we can compare our views with the eventual outcome.


There have been plenty of critics. The comments section of this blog awaits anyone willing to have a go…

(“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly; who errs and comes short again and again; because there is not effort without error and shortcomings; but who does actually strive to do the deed; who knows the great enthusiasm, the great devotion, who spends himself in a worthy cause, who at the best knows in the end the triumph of high achievement and who at the worst, if he fails, at least he fails while daring greatly. So that his place shall never be with those cold and timid souls who know neither victory nor defeat.”
Theodore Roosevelt).