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He still wants to ride his bicycle

The much awaited Court of Appeal "Plebgate" costs decision was published last week and, having decided that Mr Mitchell would be limited to recovering his court fees only (if he ultimately wins his substantive case),  the Court of Appeal didn't waste the opportunity to send a clear message to litigation lawyers everywhere. 

Lord Dyson, the Master of the Rolls (the second most senior judge in the Country), said in his judgment : "We accept that changes in litigation culture will not occur overnight. But we believe that the wide publicity that is likely to be given to this judgment should ensure that the necessary changes will take place before long".  

So what changes does the Court want? Essentially it wants lawyers to stick to timetables and only depart from them for very good reasons. The Court of Appeal has provided some guidance as to how the new approach should be applied in practice – the court should look at the nature of the non-compliance, and if it can be regarded as trivial, then relief will usually granted (provided it is no more than an insignificant failure). If the default is not trivial, then the defaulting party must persuade the court to grant relief which will involve consideration as to why the default occurred. Lord Dyson said that a "good" reason for a default might be debilitating illness or accidents involving the acting solicitors(!). A heavy workload and simply overlooking deadlines will not, however, be tolerated.  Lawyers can expect a court to be more sympathetic if they ask for more time before a deadline has passed than if they ask for forgiveness when that deadline is in their rear view mirror.

Whilst the decision is being billed as terrifying for practitioners, the reality is that the Court will still be able to take into account "all of the circumstances of the case, so as to enable it to deal justly with the application" under CPR 3.9, albeit with emphasis on the need for litigation to be conducted efficiently and at proportionate cost. For solicitors and clients who are doing their very best to comply, this should not alter the approach taken in conducting litigation. Mr Mitchell's solicitors failed to comply with an extended deadline, and failed to respond to chasers from the other side to engage with them in relation to the costs budget, with no explanation to them or to the Court in advance of the reasons for their potential to default.They seem to have assumed that, despite the clear judicial warnings that ushered in the Jackson reforms, it would be business as normal (plus ça change....). This time though things are not staying the same.

Will the judgment be enough to stem the predicted tide of satellite litigation? Probably not - the good lawyers will carry on as normal and so - at least for the moment - will the bad ones. When things go wrong, the indemnity insurers of those bad ones will probably continue to use satellite litigation as a way of beating up claimants and some of those cases will end up in front of judges. 

As for Mr Mitchell, some commentators have suggested that he may find it difficult to find legal representation. It's difficult to accept that - while clients are deeply interested in costs, Jackson costs budgeting is a lawyer's responsibility. The failure here looks like clear negligence and it's difficult to see how Mr Mitchell can bear any responsibility for it. His solicitors might well find themselves conflicted, so Mr Mitchell may have to go elsewhere. If he does, we can't see him picking up the bill.


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