Mitchell: an end to satellite litigation

As it handed down judgment in Mitchell, the so-called 'Plebgate' case, the Court of Appeal stated its intention to send out a "clear message" to change a culture of non-compliance with court rules where the defaulting party could either buy itself out of trouble by paying more in costs or argue that the other party has suffered no prejudice.

The case started when former chief whip Andrew Mitchell brought defamation proceedings against The Sun but failed to lodge a costs budget within the seven-day deadline applicable under the pilot scheme for new defamation costs rules. The Master held that, as a result, Mitchell should only be able to recover court fees, a decision which the Court of Appeal has now upheld.

In dismissing Mitchell's appeal, the court set out a number of guidelines for assessing non-compliance (see box).

The judgment concludes by stating: "In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past."

But will this really be the case? I am not sure the judgment itself was conclusive enough to end the type of satellite litigation it looks to eradicate.

The 'trivial' exception

The court explained that it would usually grant relief if the non-compliance "can properly be regarded as trivial" provided that an application is made promptly. However, no clear definition or test on what should be classified as "trivial" was provided. With regards to meeting deadlines, a "narrow" miss passes the test, but would serving a cost budget an hour past the deadline be classified as "narrow" or could this be extended to one or two days without any good reason? '¨This would have to be tested in the courts.

Extensions of time

As the court intends to look more favourably on applications for extensions of time rather than applications made for relief from sanctions, it seems all the old arguments used in applications for relief could '¨now be used to obtain extensions for time.

However, in cases where parties would usually have agreed an extension of time without resorting to the courts, there will now probably be a tactical shift not to agree such requests or alternatively contest such applications in court to put pressure on the party seeking the extension to default as there is now a greater likelihood that a sanction will be enforced (without any relief being granted) if they do.

At least this will be the case until the courts provide clearer authority on what grounds an extension of time will be granted, which means a whole load more applications in court as parties test the court's decision to look on such applications favourably.
How high is the standard going to be, will the courts also look favourably on serial applications for extensions of time to file the same document and will this create a fairer system?

It is quite clear that a warning shot has been fired by the Court of Appeal and a new, tough, strict post-Jackson regime has begun. But the story does not end here. More guidance and authority is needed to remove satellite litigation as we know it and to create the fairer and more efficient legal system that is sought.