Civil litigation: take a more proportionate approach

The Mitchell saga has
now come to a head.
On 16 and 17 June 2014, Master of the Rolls Lord Dyson, together with Lord Justice Jackson, author of the civil justice reforms, heard three linked cases concerning relief from sanctions.

More than six months on from the Court of Appeal’s decision to refuse relief from sanctions in the Plebgate case of Andrew Mitchell MP v News Group Newspapers Ltd, we were to finally have clarity on that decision and application of
the case management rules more generally.

On 17 June, the Law Society intervened in the proceedings. It said that the Mitchell decision had a “significantly detrimental” effect on the conduct of civil litigation generally. The concern was that the approach taken by some judges following Mitchell had changed the spirit of the litigation process, such that consideration between adversaries has been replaced with an awkward, pedantic and opportunistic approach.

The appeals in all the ‘Mitchell 3’ cases were allowed.

Misapplied judgment

In handing down judgment
on 4 July 2014, it was held that: “the judgment in Mitchell has been misunderstood and is being misapplied by some courts. It is clear that it needs
to be clarified and amplified in certain respects”.

The general view was that the Mitchell guidance was sound, but the application and interpretation were not.

It was held that an application for relief from sanctions should be considered in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order”, which engages rule 3.9(1).

If the breach is neither serious nor significant, the court is unlikely to need to spend
much time on the second and third stages.

The second stage is to consider why the default occurred and the third stage is to evaluate “all the circumstances of the case, so as to enable
[the court] to deal justly with the application including [factors (a) and (b)]”.

We were expecting the Mitchell decision to be clarified in such a way to be more consistent with the ethos behind the Jackson reforms
of proportionality, efficiency and compliance in cost and
case management.

The draconian application
of the case management rules since Mitchell had led to a raft
of satellite litigation that inundated the courts, and led to a culture of adversarial litigation with the increase costs associated, which was counterproductive to the rationale behind the Jackson reforms in the first place.

Cultural criticism

In the ‘Mitchell 3’, Lord Justice Jackson confirmed that “ultimately what rule 3.9 requires is that the court should ‘deal justly with the application’”. He added that “the new rule 3.9 is intended to introduce a culture of compliance, because that is necessary to promote access to justice at proportionate cost”. He criticised the culture and satellite litigation that has developed from the interpretation of Mitchell.

What this means in practice
is that lawyers should consider
a shift towards a more proportionate approach to case management. Where deadlines are approaching, a more considerate approach should be taken to your opponent while maintaining efficient case running in compliance with the rules and practice directions.

This is particularly where
such an approach has been facilitated by the recent amendment to CPR 3.8, allowing parties to agree extensions of time of up
to 28 days.

As the Bar Council put it: Mitchell has taken the “civility out of civil litigation”. Thankfully, the clarification of Mitchell recommends a shift towards a more proportionate approach so that consideration of your opponent is no longer a
fool’s game. SJ
 

Eleanor Kilner is a solicitor at Weightmans