Commercial Litigation Funding
Ding Dong is Mitchell Dead?

Ding Dong is Mitchell Dead?

While there may not have been singing in the street, some recent and interesting developments in case law mean that solicitors who could have been facing heavy sanctions for missing court deadlines may be able to breathe a quiet sigh of relief. In recent months a number of decisions have come down, showing a much greater willingness on the part of the Judiciary to grant relief from sanctions for breaches of the rules and court orders. This represents a significant turn from the strict Mitchell [1]  doctrine, under which sanctions came thick and fast for firms who were not in strict compliance.

In Michael Wilson & Partners[2], the court held the trial judge had been wrong to strike out an appeal after a costs deadline was missed by 16 weeks and without good reason. Granting MWP’s appeal against this decision under the rarely invoked discretion afforded by Rule 3.1(7), the Court noted that the principles set out in Mitchell, had to be read in the light of the Denton[3] case.  Denton held that judges should have regard to all the circumstances of the case when considering an application for relief from sanctions. Mitchell, by contrast, accorded “paramount importance” to the need for litigation to be conducted efficiently and the need to enforce compliance with rules.

In Viridor Waste Management v. Veolia [4]– A case where the particulars had been received by the defendants approximately 18 hours after the time permitted for service. The court found that a submission by the opponent that "any delay was always serious and significant" was unrealistic and not in accordance with the guidance in Denton. Popplewell J. held the delay was neither significant nor serious and the defendant had decided to take unreasonable advantage of the claimant’s default in the hope of obtaining a windfall strike-out. The Judge not only granted relief from sanctions, but also noted that the defendant had caused unreasonable delay in refusing to consent and therefore had impacted other court users. The Court held that as the defendant had been opportunistic and unreasonable it was appropriate to award the claimant costs on an indemnity basis.

For More information on the current case law regarding sanctions:

  • Gotch v. Enelcol LTD (2015) EWHC(TCC) 1802 where Mr. Justice Edewards- Stuart commented “Unreasonableness, intransigence and the taking of every point must in my view now be regarded as unacceptable, because conducting litigation in that way flies in the face of the overriding objective as it is now formulated”
  • Global Torch LTD v. Apex Global Management (2014) 1WLR 4495 – A case where the Court noted that striking out is so draconian a penalty that it should only be invoked where truly necessary.
  • Art and Antiques Ltd v. Magwell Solicitors (2015) EWHC 2143 (Ch) (4 June 2015) – a case in which relief from sanctions was granted by the court and the claimant was allowed to serve expert report late, as there was minimal prejudice to the defendant.

 

 



[1] Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537),

[2] Michael Wilson & Partners v Sinclair [2015] EWCA Civ 774

[3] Denton & Others v TH White Ltd [2014] EWCA Civ 906

[4] Viridor Waste Management Ltd -v- Veolia Es Ltd (QBD (Comm) 22/05/2015.