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The Court of Appeal has unanimously agreed that all three ‘Mitchell appeals’ should be allowed.
In doing so, it found that, although the Mitchell decision ought not to be criticised, it had led to some confusion and criticism. As such, some clarification and amplification on the interpretation and application of Rule 3.9 was required.
It was hoped this judgment would increase compliance and reduce the need for satellite litigation on the issue of relief from sanctions. The judgment introduces a three-stage test to be applied by courts determining RFS applications and suggests, among other things, 'heavy costs' penalties for respondents who unreasonably object to an application for relief.
Denton v White & others; Decadent Vapours Limited v Bevan & others; Utilise TDS Limited v Cranstoun Davies & others  All ER (D) 53 (July);  EWCA Civ 906
In allowing each of the appeals, the appeal judges found the first instance judges had incorrectly applied the principles set out in CPR 3.9 and/or the Court of Appeal's decision in Mitchell.
The Court of Appeal held it would be useful for courts, in determining relief applications, to apply a 'three-stage' test, namely:
Other principles and practical implications seemingly arising from this decision include:
For the Court of Appeal's findings in relation to each of the appeals, see:
Court: Court of Appeal, Civil Division
Judges: Master of the Rolls, Lord Justice Jackson and Lord Justice Vos
Date of judgment: 4 July 2014
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Virginia specialises in general domestic and international commercial litigation, arbitration and alternative dispute resolution.
Virginia trained, qualified and practiced with Pinsent Masons before moving to Marriott Harrison where she continued in practice for a further seven years.
In practice, Virginia acted in a variety of general commercial disputes covering areas including intellectual property, fraud, defamation, misrepresentation, breach of contract, debt recovery, breach of restrictive covenants and company and shareholders’ disputes.
Virginia is Head of Dispute Resolution at Lexis®PSL and, when not focused on the strategic development and operational requirements of the Dispute Resolution module, her content work focuses on case management and evidence in civil litigation. She also regularly contributes to the LexisNexis Dispute Resolution Blog.
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