High Court judge avoids Mitchell approach to allow 'justice and fairness'.

Sir David Eady yesterday allowed an appeal in the High Court on the basis that " justice and fairness required that the amendment should have been allowed so that "the real dispute" between the parties could be adjudicated upon" despite the fact that the Defendant at first instance had been refused permission to amend his defence in order to plead formally a case in contributory negligence.

Groarke v Fontaine [2014] EWHC 1676 (QB) is a claim following an RTA which occurred in 2009 whereby the Claimant, riding a motorcyle, collided with the Defendant who emerged from a side turning. Counsel for the Defendant, instructed near to the trial, sought to include a formal pleading for the Claimant's contributory negligence in the Defence (omitted previously). This was not allowed by the District Judge, thereby prejudicing the Defendant, "in the sense that he lost the opportunity to reduce his liability by an appropriate percentage".

In his conclusion, Sir Eady respectfully concluded

"that [the District Judge] in examining the trees he ultimately failed to see the wood. In so far as he balanced the potential prejudice to the Claimant against that to the Defendant, the exercise yielded the wrong outcome. I believe that justice and fairness required that the amendment should have been allowed so that "the real dispute" between the parties could be adjudicated upon."

He went onto say

"It is true that the burden was on the Defendant to establish not only that this objective was desirable but also that it should, in the particular circumstances, prevail. I can see, however, no good reason why it should not. There was no countervailing prejudice to the Claimant.

In particular, there was no need for any adjournment, any further delay or additional cost. The court was able to accommodate the issues of causation (including those relevant to contribution) on the appointed trial date and (whether it was appropriate to do so or not) the District Judge actually stated what his conclusion would have been on contributory negligence.

Thus no court time would have been wasted or court resources diverted. Correspondingly, no other court users would have been inconvenienced. The only concrete result of the District Judge's refusal was that, at least on his (obiter) finding, the Claimant was to gain a windfall payment unjustly."

Whilst some practitioners may well welcome this judgment the key issue it raises is where does it leave practitioners in understanding how the courts will deal with their application or opposition to an application.  From discussions with practitioners this is a real concern.

In Associated Electrical heard in February 2014, Mr Justice Andrew Smith in the Commercial Court was faced with an application for an extension of time for service of particulars of claim which, even though he considered it would have been just and fair to grant, he refused on the basis that he felt constrained by the decision in Mitchell.  This was so even though the decision in Mitchell post dated the events under consideration. In refusing the application he did so on the basis that the emphasis of the decision in Mitchell was to encourage procedural discipline by practitioners.

What are your thoughts on this?

Have you experienced opposing positions to the Mitchell principles depending on the court you are appearing in leaving you unsure whether to agree to an extension of time or to oppose applications?


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