MITCHELL NOT EXTENDED TO ADMINISTRATIVE LAW: AN ISSUE FOR ANOTHER DAY

In R (Abbas Mohammadi -v- Secretary of State for the Home Department [2014] EWHC 2251 (Admin)the court did not decide the issue of whether “Mitchell” principles applied to applications for judicial review.

THE FACTS

The applicant was seeking judicial review of a decision of the Asylum and Immigration Tribunal. The Secretary of State filed grounds of defence some nine months late.  The judge was faced with a submission that the defence should be struck out under the Mitchell principles.

” Preliminary Procedural Issue
2. Before turning to the application of para 353 there is a preliminary procedural point to
consider. Permission to apply for judicial review was granted on the 2nd May 2013 by
HHJ Thornton QC. Under CPR 54.14 the Defendant had thirty five days from the
grant of permission (i.e. until the 7th June 2013) to file her detailed grounds (and
written evidence) for contesting the claim. And in granting permission HHJ Thornton
QC had so ordered. None the less, the Secretary of State only filed her Detailed
Grounds of Defence on the 29th March 2014, about nine months late.
3. In these circumstances Mr Ball, for the Claimant, submitted that I should exercise my
powers under CPR 3.4(2)(c) that arise on non-compliance with a court’s order and
strike out the Defendant’s Detailed Grounds of Defence. Mr Ball submitted that this
would be in accordance with the “new robust approach” of Mitchell MP v News
Group Newspapers Ltd [2013] EWCA Civ 1537 of not generally “granting relief to
defaulting parties from the consequences of their defaults” (Lord Dyson MR, para
34). This “robust approach” was adopted in reaction to the fact that “courts at all
levels have become too tolerant of delays and non-compliance with orders. In doing
so, they have lost sight of the damage which the culture of delay and non-compliance
is inflicting upon the civil justice system. The balance therefore needs to be
redressed.” (ibid, but citing Sir Rupert Jackson’s Final Report Ch 39, para 6.5).
4. But as Mr Hansen, for the Secretary of State, pointed out, the current matter is in the
Administrative Court and this distinguishes it from Mitchell which was private law
litigation (in fact concerned with costs budgets in litigation between individuals). Mr
Hansen went on to argue that there was a public interest in judicial review litigation
that was absent in private law litigation. Although Mitchell was not in terms restricted
to private law I recognise that there is a public interest in securing the lawful exercise
of public power that transcends the interests of the litigants immediately involved.

This public interest is not consistent with striking out the Detailed Grounds and thus
deciding this case on an artificial basis.
5. I note also that Mitchell was concerned not with the power to strike out a pleading but
with CPR 3.9 which is concerned with granting relief from any sanctions imposed for
a failure to comply with a rule, practice direction or court order. As Mr Hansen
pointed out there was no sanction imposed in this case.
6. Moreover and significantly the courts under CPR 3.9 are particularly directed to
consider “the need…for litigation to be conducted efficiently and at proportionate
cost; and… to enforce compliance with rules, practice directions and orders”. But
there is no such particular direction in rule 3.4 – the power I am asked to exercise.
Thus I decline to strike out the Defendant’s Detailed Grounds of Defence. I note,
however, the inordinate delay by the Defendant without any particular explanation
advanced to the court.
7. The application of the new “robust approach” of Mitchell to public law litigation will
doubtless be considered in other cases; but this is not the case in which to do so.

CURIOUS TIMING

I was initially nonplussed by the Mitchell arguments being raised. . The date on the transcript is the 9th July 2014. It is curious that  there is no reference to Denton where judgment was given on the  4th July 2014.  The Mitchell principles had been “clarified” before this decision was made. However the situation was made clear in the comments section below. The case was argued on the 8th April well before the Denton decision.