Court of Appeal to shed further light on Mitchell

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Litigators across England & Wales will be eagerly anticipating the judgment of three appeals heard together in the Court of Appeal last week, which will likely provide some clarity on the controversial rulings that came out of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537.

Each of the three appeals relate to decisions which have either granted or denied relief from sanction for procedural breaches.

Since Mitchell there have been several sequel cases, most significantly Chartwell Estate Agents Limited v Fergies Properties SA [2014] EXCA Civ 506. In this case, the Court of Appeal took a step in the opposite direction to Mitchell.

In Mitchell, reference was made to the new Rule 3.9 of the Civil Procedure Rules which refers to two specific considerations that the Court should have when deciding an application for relief from sanction, namely: 1) for litigation to be conducted efficiently and at proportionate cost; and 2) to enforce compliance with rules, practice directions and orders. It was held that these factors were of paramount importance and that other circumstances were to be given less weight.

In Chartwell, it was noted that Rule 3.9 still requires all the circumstances of a case to be taken into account and that the two factors set out in Rule 3.9 did not always need to prevail. The Court referred to various additional circumstances, the main one being that refusing relief would effectively end the claim because the Claimant would have no evidence to rely on in a situation where it had the burden of proof. The Court of Appeal therefore granted relief from sanction despite the failure to comply with a rule not being regarded as trivial and there being no good reason for the non-compliance.

In this significant initiative to put an end to satellite litigation, it seems that things may well get worse before they get better. Inevitable Court time will be spent debating points which, ironically, by their very nature, are precisely what the Court is attempting to stop.