Friday, 28 February 2014

Mitchell on Mitchell – Why missing deadlines cause costly headlines

This February my training at B P Collins LLP has taken me, Rebecca Mitchell, to the litigation and dispute resolution practice group, where the name "Mitchell" frequently resonates around the group. You can imagine my concern as I hear my name repeated from across the room, but, thankfully, it is another Mitchell to whom they refer. Andrew Mitchell.
In the wake of the Court of Appeal's ground-breaking decision of Mitchell v News Group Newspapers Ltd (2013) EWCA Civ 1537 ("the Mitchell case"), there can be little doubt that a sea change in litigation is now occurring. A sea change initiated by the implementation of the Jackson Reforms on 1 April 2013. The Jackson Reforms are, in short, intended to change the way litigation is conducted by enforcing a new culture of strict compliance and controlling costs.
In the Mitchell case, Mr Mitchell's solicitors failed to serve a costs budget on time (six days late) and the High Court Master ruled that he was to be treated as having filed a cost budget for applicable court fees only (this is compared to the £506,425 sought). Mr Mitchell appealed, but the Court of Appeal refused to grant relief from the sanction imposed by the High Court Master and concluded that if the Court of Appeal were to overturn the decision “it is inevitable that the attempt to achieve a change in culture would receive a major setback... in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders.”
As a LPC student I was taught to be meticulous in my approach to all court deadlines. The “clear days” rule 2.8 of the Civil Procedure Rules (CPR) was referred to at least once a class and, inevitably, a tired-looking student would be asked to count on a calendar to ensure that the correct date for a fictional deadline was understood by all of the class. In the case of Mitchell, the Master drew attention to the fact that failure to serve the costs budget in time resulted in her needing to vacate other appointments relating to asbestos claims. The effect of one party missing a deadline not only interrupted and delayed the Mitchell case, but also adversely affected other cases. The courts are inundated with cases and now, more than ever, it is essential for the legal profession to be efficient and streamlined to ensure that the court's time is put to best use.
Furthermore, the general consensus is that the principle “de minimis non curat lex” (the law is not concerned with trivial things) applies here as it applies in most areas of law and so the relief from sanctions of CPR rule 3.9 can still be relied upon where just and proportionate. The Court of Appeal in the Mitchell case upheld the Master's assertion that "we were too busy to file the schedule on time" is not a valid excuse intended to be covered by the "de minimis" principle.
The question now is how strictly should the courts enforce compliance? In an unreported case shortly before the Mitchell case, a Judge struck out the Claimant's costs budget because the phrase "[Statement of Truth]" was in square brackets which are not compliant to the mandatory requirements for a Statement of Truth pursuant to the CPR. The costs budget had been signed and dated in the appropriate way and, unlike in Mitchell, filed in time. Is it possible that the Court rules are being applied too vigorously?
The greater clarity and certainty that the new system provides is conducive to effective case management which, in turn, can only benefit the client and improve the reputation of the legal profession as a whole. However, the Courts must now strike a balance between establishing a culture of compliance and the necessity of leniency in appropriate cases. 
Phil Mitchell may have brought us drama and R.J. Mitchell the Spitfire, but Andrew Mitchell will be remembered for his role in reinforcing a new culture of strict compliance. 
 Rebecca Mitchell

Rebecca started her training contract in September 2013 after graduating from Newcastle University with a 2:1 (BA Hons) in History. She undertook the Graduate Diploma in Law at Kaplan Law School and has recently completed the Legal Practice Course with distinction.