Mitchell: cut out & keep

Dominic Regan provides a self-help guide post-Mitchell

No procedural decision has created so much pain and paranoia as that of Lord Dyson MR in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 2 All ER 430. In his latest column in New Law Journal, Dominic Regan gives his suggestions on things which will help litigators sleep at night.  We've listed some below, but click over to read the full article here.

  1. When first instructed by any client write and emphasise that you must have their full and immediate cooperation throughout. Otherwise, there will be a real danger that, no matter how strong their case, it could be dismissed for failure to abide by court orders and deadlines. It would be prudent to convey the same message to your experts as well.
  2. If claimant, only issue, subject to limitation, when comfortable. Do not rush into proceedings when ill-prepared. You need to be in control and on top of each matter. When proposing directions build in a layer of breathing space. Do not be over-optimistic about how quickly steps can be taken. This was specifically found to be a cause of the fatal default in Durrant v Avon and Somerset Constabulary [2013] EWCA Civ 1624, [2014] 2 All ER 757*. Should you think a task will take 16 weeks it might be wise to ask for, say, 18 weeks. Do not make a rod for your own back. Furthermore, I sense that it is much easier to get time at the outset rather than trying to secure more as a deadline approaches.
  3. DIARISE! Every time limit must be faithfully recorded and monitored.
  4. Take advantage of the revised CPR 3.8, effective 5 June**, so as to agree a necessary variation in the court timetable by up to as long as 28 days. This cannot be used if the variation would encroach upon a key date such as the trial date.
  5. If you cannot agree a variation or need more than 28 days make a timely application. Mitchell was emphatic; the strict approach to default does not apply where an application is filed in advance of the deadline.
  6. The position is no different if the court only manages to hear that application after the time limit has expired. See the clear statement of principle from Jackson LJ in Hallam Estates Ltd v Baker [2014] EWCA Civ 661, [2014] All ER (D) 163 (May). Hallam also declares that it is not negligent for a solicitor to agree to a reasonable request for a reasonable extension. This was to rebut the argument that one must always act in the best interests of the client. It is the duty of all to cooperate and so help further the overriding objective. Indeed, I suggest that an obdurate party who unreasonably refused to agree such an extension ought to be required to pay the costs of the application in any event.

* We sent subscribers our full Durrant analysis in our December newsletter (see here). Ensure you don't miss any future Practice Notes and analysis by signing up to our monthly newsletter using the box on the right. Alternatively, leave your email address in the comments (we will pick it up prior to publishing the comment, so it won't be made public, and we will email you the full analysis).

** We sent subscribers our Practice Note on the CPR changes on 5 June in our May newsletter (see also this post). If you'd like to receive this, ensure you've signed up in the box on the right but you can also leave your email address in the comments (we will pick it up prior to publishing the comment, so it won't be made public, and we will email you the full analysis - just make sure you indicate which piece you're after)

Professor Dominic Regan  is an NLJ columnist and has assisted Lord Justice Jackson & HH Judge Simon Brown QC with costs reform. He also writes Prof Dominic ReganThe full article was first published by New Law Journal on 5 June 2014 and is reproduced with permission.

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