What's Going On?
The decision in Mitchell v News Group Newspapers (see earlier blog) may have been unpopular and perhaps harsh but to give Master McCloud his dues, at least his interpretation of the Jackson reforms on Part 3.9 of the Civil Procedure Rules was clear: relief from sanction will only be given if the non-compliance is either trivial, or if there is a good reason for it. The subsequent cases have however, left the legal community in a state of some confusion.
The decision in Singh v Singh was a straightforward application of Mitchell. The Court refused to grant relief from sanctions to the Defendant who failed to comply with an unless order and serve an amended Defence. The key factors for consideration were the lack of fairness to the Claimant and the allocation of Court resources.
In stark contrast to the decisions in Mitchell and Singh, in SXK v West Hertfordshire Hospitals NHS Trust, the Judge granted relief for late service of witness evidence, despite his finding that the breach had not been trivial and that there was no good reason for non-compliance.
Further in Intergral Petroleum SA v SCU- Finanz AG, the Claimant served Particulars of Claim 5 days late and (not validly) by email. The decision in Mitchell was only briefly referred to and neither party nor the Judge referred to CPR 3.9.
In Lakatamia Shipping Co Ltd v Nobo Su, the Commercial Court ordered that the respondent to an application for relief from sanctions should pay the costs of the application because the breach in question - the missing of a deadline by the applicant by 15 minutes - was deemed trivial.
On a final and rather concerning note, in the case of Utilise TDS Ltd v Davies and others, the Claimant was limited to recovering Court fees as a consequence of filing its costs budget 41 minutes late, in breach of a Court Order. The Court acknowledged that the breach was trivial but referred to it and a similarly trivial breach of the same Order as the equivalent of 1 non-trivial breach. Presumably, applying the same logic, if the costs budget had been filed just a minute late, the result would have been the same.
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Good news though: the Mitchell satellite continues to orbit and we hear that three "Mitchell" appeals will be heard in the space of two days next week (16 and 17 June). Lord Dyson will be doing the honours in all three (having presided in Mitchell itself) and it is hoped that those cases will give further guidance on the application of Mitchell principles. So will we get definitive guidance? All we'll say is that, we suspect that that's about as likely as a Rooney hat trick bringing an end to 48 years of hurt on 13 July. Still, we can buy hope.