Relief from Sanctions – Life after Mitchell

The legal profession are celebrating a return to some degree of normality following the Court of Appeal’s decisions last week in three linked appeals relating to relief from sanctions applied for non-compliance with Court directions.Since the implementation of the so called ‘Jackson Reforms’ in April 2013 - see our previous article “Litigation – All Change Please” for further information - lawyers have been dogged by some over zealous judges and draconian decisions.

The amended Civil Procedure Rules provide for significant sanctions to be imposed on a defaulting party where they have failed to comply with a rule, or Court order. Whilst parties can apply to the Court for relief from sanctions the scope for relief has been limited and the extent to which Judges have discretion to grant relief has been unclear.Since the changes, judges in the lower Courts have been accused of misinterpreting the rules, and making inconsistent or unnecessarily harsh decisions. Guidance set out in the case of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1526, [2013] All ER (D) 314 (Nov), which had been intended to alleviate the problems, seemed in fact to cause more uncertainty and ironically lead to less co-operation between the parties and a number of tactical applications.The Claimant in Mitchell, the former Cabinet minister Andrew Mitchell, had sued News Group Newspapers for The Sun’s coverage of the ‘Plebgate’ affair. Keen to send a message to lawyers that they had entered a change in culture and that delay and inefficiency would not be tolerated, the Court in Mitchell deprived the Claimant of his costs when his solicitors failed to file a ‘costs budget’ in time. The Claimant applied for relief from the sanctions depriving him of his costs but his appeal was refused. The Court indicated that the expectation was the sanction would usually apply and relief would not be granted unless the breach was ‘trivial’ or there was a good reason for it. Further chaos and uncertainty prevailed and the decision resulted in disproportionate penalties being applied, mistrust between parties to litigation and huge uncertainty.

For more information or guidance please contact Catherine Canham on 01752 292398 or Rebecca Mabelle on 01752 292308 in our Disputes and Litigation Team.

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