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Understanding Mitchell?

Denton v TH White
 [2014] EWCA Civ 906
Summary

  • Apparently we have all "misunderstood" and "misapplied" MItchell v News Group Newspapers [2013] EWCA Civ 1537 and therefore clarification and amplification has been given by the Court of Appeal.
  • There is a 3 Stage approach to applications for relief from sanctions.
  • The re-stated test is less draconian.
  • It is hoped that with this case it will be unnecessary to refer to the earlier authorities.
  • Practitioners beware. Non-cooperation and opportunism are likely to lead to costs sanctions.
  • Jackson LJ dissents on one point relating to the weight to be attached to the specific factors mentioned in (a) and (b) of CPR r3.9.
The Facts

There were 3 conjoined appeals.

In Denton, C served 6 additional witness statements one month before a 10 day trial. Relief fron the sanction in CPR 32.10 was granted. The trial was adjourned. CA Held: This was plainly wrong.

In Decadent, C failed to comply with an unless order regarding payment of court fees. The cheque would have arrived one day late. C had breached previous court orders. The claim was struck out. CA Held: It was disproportionate to strike out the claim. Further, D ought to have consented to relief being granted.

In Utilise, C's costs budget was 45 minutes late. Since C breached other orders, the delay was not trivial. C was treated as having filed a budget of court fees only. CA Held: The breach was neither serious or significant. The decision was wrong. D ought to have consented to the grant of relief from sanctions.

The 3 Stage Test

Stage 1
  • "The first stage is to identify and assess the seriousness or significance of the 'failure to comply with any rule, practice direction or court order" (Para 25).
  • This is a departure from the focus on triviality in Mitchell, as is made expressly clear by the lead judgment: "we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather it should be on whether the breach has been serious or significant." (Para 26).
  • Other unrelated breaches are not relevant to this stage.
  • "If a judge concludes that a breach is not serious or significant, then relief from sanctions will usually be granted and it will usually be unneccesary to spend much time on the second or third stages." (Para 28).
Stage 2
  • "The second stage is to consider why the default occured." (Para 24).
  • The Court of Appeal refers to the examples of good and bad reasons given inMitchell but stresses that these are no more than examples
Stage 3
  • "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)." (Para 24).
  • It is not the case that if there is serious or significant breach and no good reason that an application for relief from sanctions must automatically fail.
  • The factors specifically mentioned in (a) and (b) of CPR r3.9 ((a) is the requirement that litigation be conducted efficiently and at proportionate cost; (b) is the need to enforce compliance with rules, practice directions and orders) may not be of paramount importance (as said in Mitchell) but they are of "particular importance" and should be given "particular weight". (Para 32).
  • At the third stage it is "always necessary to have regard to all the circumstances of the case" (Para 36). The promptness of the application and other breaches are amongst the relevant circumstances. However, particular weight must be given to factors (a) and (b). 
  • (Jackson LJ dissented on the weight to be attached to factors (a) and (b) only).
Satellite Litigation and Non-Cooperation

  • The Court of Appeal refers to CPR r1.3 and the need for co-operation between the parties to litigation and their lawyers. The Court has said: "we think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and they will obtain a windfall strike out or other litigation advantage." (Para 41).
  • The message is: "In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation." (Para 41).
  • As to the consequences of not playing nicely, the Court of Appeal suggest: "Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably opoose applications for relief from sanctions." (Para 43).
Russell James
Russelljames@devonchambers.co.uk
Russell specialises in Property Litigation, Housing and Homelessness, Personal Injury and Civil and Commercial Litigation. Russell is recognised in Legal 500 for his work in Housing.

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