Civil Procedure Rules post-Mitchell

by Richard Tymkiw on July 18, 2014

Richard Tymkiw

There has been a welcome review of the unforgiving doctrine of Mitchell, a case widely interpreted to mean that any breach of a Court Order or time limit would either sound the death knell to the action (claim or defence) or result in punitive cost sanctions.

With judgments of the Court of Appeal in June 2014 delivered by Master of the Rolls Lord Dyson a more rational wind of change has blown.  The cases of three offending solicitors were considered.

In summary, whilst breach of a Court deadline still possesses more sinister dimensions than it did before, the tentative view is that the Court will not be quite so willing to impose sanctions which are lethal to a case or draconian in consequence.

In the case of Denton the breach was unforgiven.  One party had served 6 witness statements only one month prior to a 10 day trial.   Their delay had fallen foul of Rule 32.10 of the Civil Procedure Rules (CPR): “if a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the Court then the witness may not be called to give oral evidence unless the Court fives permission”.

At first instance the judge was sympathetic, allowed in the late witness evidence and directed the trial to be adjourned.  Lord Dyson disagreed.  He held that an adjournment now to allow in such late evidence would result in a waste of Court time and generate substantial costs.  The party complaining of late service succeeded, and the appeal was allowed.  This was a classic illustration of the importance of good case management.

In the case of Decadent the breach was forgiven, even though the timeframe had been exceeded.   One party was subject to an ‘Unless Order’ striking out their case unless the Court fees were paid on time.  They had clearly been given a health warning.   However, notwithstanding the peremptory Order, Court fees were still paid late.

The Court at first instance had refused relief from sanction.  Nonetheless the appeal was allowed, the Court of Appeal no doubt considering it infinitely preferable that a hapless client should not be deprived of their rights to trial.

In the case of Utilities the breach was again forgiven despite the timeframe having been exceeded.   Here one party’s Costs Budgets had been filed just 45 minutes late.  Moreover the party had failed to notify the Court of the result of negotiations earlier ordered.

The Court at first instance had refused relief.  But the appeal was allowed.

The general view now taken is that the onus of proof has shifted.  Previously it was the party in breach who had the burden of seeking to show that their breach had been sufficiently trivial to merit clemency.  Now, I suggest, it is the party who has complied who will need to show that any breach is sufficiently serious or significant to persuade the Court to intervene and invoke substantial sanctions.

In my view a 3-stage approach will be adopted in most cases.  The Court will:

  1. assess whether the breach falls within the category of sufficient, serious or significant;
  2. examine how the failure occurred (with the party in default needing to be prepared to give reasons); and
  3. look at all the circumstances of the case.

Reference to “all the circumstances” appears to allow a broad area of discretion.  The Court may now possibly be willing to give clear recognition to the precepts of Natural Law, which inter alia emphasise fairness and the ultimate right of any party seeking recourse to law not to be kept from the seat of justice.  Therefore the Courts may currently be willing to exercise somewhat greater tolerance than that associated with the Mitchell decision and the harsh regime which immediately followed on from it.

One marker: where unwittingly slippage may have occurred, and one party proposes to remedy it, the Court is likely to expect the other side to be co-operative and give sympathetic consideration to any reasonable extensions of time, variations or relief from sanctions.  It is therefore quite unattractive (and may rebound) for a litigant to attempt to exploit an opponent’s hapless oversights (e.g. running out of time) and seek to extract maximum tactical or commercial advantage therefrom.