Mitchell penalties: hypocrisy in the extreme

The Court of Appeal decision in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1526 has been widely, strongly and rightly criticized for being unjust and alien to the entire concept of British justice. Frankly if the interests of the efficiency of the state are to be put above doing justice in an individual case then we are on the road to Nuremberg.

Court orders and timetables should be obeyed and it is in all of our interests that the system works efficiently and speedily. In most cases lawyers, experts, ATE insurers and everyone else do not get paid until the end of the case. Only defendants benefit from cases being delayed.

Most delays are caused by a court system that is falling apart. I do not blame the courts. They are understaffed, under-resourced and the court staff work under pressure in difficult circumstances. Also, lawyers are not the easiest of people to deal with.

The Court of Appeal, much better resourced and under much less pressure, seems unaware of the daily problems in the county courts, for staff, judges and users.

What else could explain the extreme position taken by that court in Mitchell when courts are guilty of more serious errors and delays every hour of every working day?

At paragraph one of its decision the Court of Appeal said: "The question at the heart of this appeal is: how strictly should the courts now enforce compliance with rules, practice directions and court orders?"

Nowhere in its judgment does the Court of Appeal refer to the inadequacies of the court system causing a failure to comply with a timetable. Nowhere is there any suggestion as to how the system will be improved and what solution there should be in the court system.

It is this hypocrisy that is angering lawyers. It is the equivalent of a weak teacher who could not control the class by force of personality and so resorted to the violence of corporal punishment.

No lawyer likes making a mistake; all lawyers accept that a tough financial penalty is appropriate, but it is not unreasonable to expect the courts to adopt a policy of "Do as you would be done by." Try getting compensation when the courts screw up.

I believe that judges should be free from sanction so as to preserve independence, but that position is now hard to defend. If a simple error can wipe out a firm, and my firm would be wiped out by a Mitchell style penalty, then why should parties and their lawyers bear the extra cost of an appeal when a judge makes a mistake?

Why should Messrs Dyson, Richards and Elias not pay the full costs of an appeal where they are overturned? Incidentally, to put it mildly, Master McCloud has a chequered history, in relation to her decisions. If she applied her own rules to herself I suspect that she would be bankrupt. Ironically the original court here issued the order for the case management and costs hearing on 5 June with a return date of 10 June and that late notification by the court caused the first hearing to be vacated. That was entirely the court's fault and the responsibility presumably rests with Master McCloud. With a degree of hypocrisy rarely matched anywhere, she then used the fact that she had to vacate a half day appointment dealing with an asbestos case to hear the relief from sanctions application, to justify her decision. Physician heal thyself.