The Andrew Mitchell effect...

The recent Court of Appeal decision in Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 has set the cat amongst the legal pigeons. Oddly reported as a costs decision, while costs were the basis of the matter before the court, the matter was in reality an appeal agsinst the lower court's refusal to grant relief from sanctions.

The difficulty faced by the profession is that there has been creeping complacency since the introduction of the CPR in 1998. Solicitors have become increasingly complecent and reliant on the willingness of the courts to grant relief from sanctions even on oral application.

The Court of Appeal have made it plain, in Mitchell, that here has to be a substantive reset to the approach taken by parties with regard to compliance with rules and directions.

The effect of this ruling has already had profound effect, even beyone the approximately £500k that was at stake in Mr Mitchell's case. Failure to file evdence in copmpliance with directions has led to claims being struck out, failure to pay another party costs similarly, failure to file evidence pursuant to directions has led to defences being struck out and a last minute request for an adjournment (to be fair, made on the morning of the trial) led to the claim being dismissed. There are a growing number of litigants or their solicitors who are smarting from the sting of Mitchell.

But, in the post-Mitchell world it is possible to imaging solicitors properly diarising directions and deadlines, properly planning litigation so that there is a clear (and diarised) timetable of work to be done, and making timely applications to court, in advance of the deadline, with good reasons. it is possoble to foresee litigation following the sort of timetable envisaged by the original Civil Procedure Rules. On balance, this has to be a good thing. Fewer delays in litigation will generally lead to lower costs and should free up court time to deal with other matters.

Those who decry the decision, it seems to me, are not looking at the bigger picture. The fact of the matter is that parties have been getting away with poor compliance for a number of years now and the hard-reset is certainly going to feel brutal to the parties affected.

Solicitors are undoubtedly worried that their clients will seek too claim against their indemnity insurance for failed claims and defences. This in itself ought to be sufficient justification for firms to sharpen their processes and improve supervision.

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