A softer Mitchell touch?

Keeping up with recent case law following the Mitchell decision is crucial. While there can be severe sanctions for non-compliance with particular rules or directions, zealous parties taking over-aggressive Mitchell points may be criticised, as in Rattan v UBS.

In Groarke v Fontaine, Sir
David Eady took a different line to Mitchell in the interest of “justice and fairness”. The recent case concerned the defendant’s permission to amend his defence. This was initially refused by a district judge then Sir David allowed the appeal.

Sir David considered the cases of both Mitchell and Durrant in which the parties in breach of the court rules were refused relief from sanctions.

Although these cases concerned applications for
relief from sanctions, Sir David considered that the policy considerations and the guidance in the cases resonated more widely in a range of
case management decisions.

Sir David said that judges needed to bear in mind “the need to determine issues justly and fairly, as between the parties themselves, but also in doing so the imperatives that litigation should be conducted efficiently, economically and with due regard to the potential impact on court resources and indeed other litigants or
court users”.

Discipline’s sake

In doing so, they had to have regard to the particular circumstances of the case. His view is that in these matters judges “have to apply judgment, or exercise an element of discretion, in the light of the particular individual facts”. He cited Davis LJ in Chartwell who said that “the courts do not
exist for the sake of discipline”.

In Groarke, the court was
able to be flexible. Sir David considered that the district judge in this case, while doing his best to apply the relevant principles, had failed to see the wood for the trees. He said that “justice and fairness required that the amendment should have been allowed so that the ‘real dispute’ between the parties could be adjudicated upon”.

Further, there was no good reason not to grant the appeal: there was no countervailing prejudice caused to the
claimant nor would it waste
court resources or inconvenience other court users.

Solicitors may interpret this
as a sign that the courts are softening the hard-line approach to procedure held in Mitchell.
Sir David said the interests of fairness and justice do not need to be “compromised merely for the sake of discipline or the marking of disapproval”.

That said, while the stance on Mitchell appears from Groarke to be softening, solicitors still need to be careful to comply with procedure where Mitchell remains good law.

Take, for example, a case
where service of witness statements is due that afternoon but the other side has confirmed that they will not be able to meet the deadline. In circumstances where there is flexibility within the order to agree an extension, parties should try where possible to do so.

In Summit Navigation v Generali Raminai Asigurare Resigurare, the court held that “in all forums, but particularly the commercial court, parties are expected to work together to ensure that litigation is conducted efficiently and at proportionate cost”.

Though you might have
agreed a consent order, it may
be that the parties require the court’s permission to extend the deadline and it is not possible
to obtain this before its expiry.

Confirm readiness

The quandary here is that while you would be prepared to agree an extension, in not having the court’s approval to do so
you may also find yourself in breach by default. In this situation, it may be sensible for the non-defaulting party to take steps to comply regardless.

One such option here
would be to confirm readiness
to exchange and send the witness statements in a closed parcel by way of exchange on the undertaking by the other side that it will only be opened
once they are in a position
to exchange.

That way, as well as complying, your client would not be prejudiced by doing so as the other side would not have benefit of the information at that stage.

Although it is pleasing that, perhaps, the courts are erring
on the side of taking a softer
line on Mitchell, solicitors must continue to be cautious and avoid taking overly aggressive procedural points, particularly in circumstances where they may be seen to waste court time.

Eleanor Kilner is a solicitor at Weightmans

SJ