5th BIRTHDAY REVIEW 4: AVOIDING PROBLEMS AFTER MITCHELL: LIVING IN THE SHADOW OF THE BIKE
It is universally recognised that the Court of Appeal judgment in Mitchell was a mistake. The Master of the Rolls stated that the decision in Mitchell decision led to a “febrile atmosphere” leading to “unreasonable decision making”. There were 219 days between the decision in Mitchell and the “clarification” in Denton. Here we look at the series that was written during that period of “Mitchell Mayhem” – much of it remains relevant.
“We had been persuaded that the Mitchell decision was causing difficulty and leading to unreasonable decision-making which was neither sensible nor what could reasonably have been envisaged by the rule.”
THE FEBRILE ATMOSPHERE
The fact that Mitchell led to a “febrile” atmosphere in litigation was recognised by Lord Dyson in The English Experience of Access to Justice Reform.
“The two stage approach stated in Mitchell proved difficult to apply in practice. Some courts applied it too strictly, taking the view that the triviality test meant that relief from non-compliance should only be granted in exceptional circumstances. It led some lawyers to adopt an unnecessarily adversarial approach to litigation, on the basis that if they took procedural points they might secure a tactical advantage for their clients. Parties were refusing to agree even short extensions of time for complying with time limits. Some even said that they were at risk of being sued for negligence by their clients if they behave obstructively and refuse to agree to anything.
25. In this febrile atmosphere, it was inevitable that the Court of Appeal would be asked to review the Mitchell decision.
By sticking to its guns, the court would have been consistent. But such a stance would not have served the interests of justice. We had been persuaded that the Mitchell decision was causing difficulty and leading to unreasonable decision-making which was neither sensible nor what could reasonably have been envisaged by the rule. This justified a slight modification of the earlier decision and an expansion of its reasoning to make explicit what had previously been insufficiently spelt out”
THAT PERIOD OF “MITCHELL MADNESS”
The high point was probably the case reported in “Case Struck out at trial for bundle being delivered late”, in which a case was struck out on the morning of the trial because the trial bundles had been delivered the morning before the trial rather than three days before. (There was no suggestion that the judge would have read them any earlier).
THE MITCHELL SERIES
There were daily reports of draconian decisions and litigants and lawyers coming to grief. Against that febrile background the 20 part series of “Surviving Mitchell a Litigator’s Guide” was written.
MUCH OF THE SERIES REMAINS RELEVANT
Although the series was written in the “Mitchell era” many of the points made remain relevant today. The points about agreeing extensions of time has been clarified, the remainder of the points made still stand.
9. Was about agreeing extensions of time, again I repeat be wary even under the new rules.
10. Again considered extensions of time
12. “Mitchell proof your case from cradle to grave” (courtesy of Legal Orange).
13. Read Kerry Underwood’s Rules of Survival
15. Share the pain
17. Rule 3 repeated (without apology): make applications before deadlines and obtain realistic directions.
18. Know that 99.98% of litigators are stark raving bonkers