Mitchell decision sends clear message to litigators says Murray Heining

Mitchell decision sends clear message to litigators says Murray Heining

The much anticipated judgment in Mitchell v News Group Newspaper Limited was today handed down by the Court of Appeal . This case can be regarded as easily the most important civil litigation judgment this year. It is of interest to all civil litigators and no doubt will be reflected upon by professional indemnity insurers.

In the far reaching judgment the Court of Appeal upheld the decisions of Master McCloud who limited the claimant’s costs to court fees as a consequence of his lawyers’ failure to deliver a costs budget seven days before the first case management conference.

The Court held that the defaults were not trivial. The Court of Appeal in refusing to grant relief from sanctions gave guidance as to the approach to be followed in considering an application for relief from sanctions. Relief from sanctions should be restricted to cases where the breach was  ‘de minimis non curat lex’ involving insignificant failures or where good reasons for breaches are demonstrated. The administration of justice overrides other considerations. The Court of Appeal endorsed the statements made by the Master of the Rolls in a lecture given by him on 22 March when he said: “Parties can no longer expect indulgence if they fail to comply with their procedural obligations.”

The Court expressed hope that the decision would send out a clear message to litigators. Those practising  in civil litigation, if they have not already reviewed their practices and procedures, must do so now and ensure that they have the resources to ensure compliance with the CPR and all orders made. They must ensure that they have the resources to meet procedural obligations.

I am quite sure that today’s judgment will provoke much discussion and rightly so. The fact that lawyers have firm guidance as to how courts should approach breaches of orders and rules is surely welcome.

This is a judgment that will give Ethelred [the unready] type lawyers sleepless nights. Those lawyers working with a team of experts including Costs Lawyers should sleep more comfortably.

Murray Heining is Chairman of the Association of Costs Lawyers and is a practising Costs Lawyer with over 30 years of experience.  

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