Mitchell and Denton: How are the Courts responding?

How are the first instance Courts reacting to the Court of Appeal’s decision in Denton & Ors v TH White Ltd & Ors, Decadent Vapours Limited v Bevan & Ors and Utilise TDS Limited v Davies & Ors [2014] EWCA Civ 906 (“Denton”) on relief from sanctions, coming as it did after the (now notorious) decision in Mitchell v News Group Newspapers [2013] EWCA Civ 1537; [2014] 1 WLR 795 (“Mitchell”)?

There will no doubt be a welter of cases to come. However, several points are already becoming clear. First, Courts post Mitchell and Denton are emphasising that relief from sanctions cases are just that:  they do not apply where no sanction is stated in the relevant Order or rule alleged to have been breached.

Recent examples

Two recent examples are the unreported decisions in Middleton v Newcastle Upon Tyne Hospitals NHS Foundation Trust (14 May 2014, Newcastle County Court) and Logan v University of Bradford (19 September 2014, Bradford County Court). In Middleton (pre Denton but post Mitchell), a District Judge had ordered the Claimant to provide a draft Agenda identifying issues to be addressed by the experts appointed in the proceedings. The Order was not complied with; the Defendant made an application for the claim to be struck out, followed almost immediately by an application by the Claimant for relief of sanctions. Deciding the application, District Judge Pescod pointed out that rules CPR 3.8 and 3.9 do not apply to the position where there is no sanction identified in relation to the breach in issue.  While CPR 3.4 permits the striking-out of a party’s statement of case in the event of breach of an order, that is a last resort which would be inappropriate in most cases; the claim was not struck out.

A similar position was reached in Logan. The additional factor there was that this was an appeal from the striking-out of a Claimant’s Particulars of Claim. The Court below (deciding the matter pre Denton) had faced an application to strike out based on alleged failures to comply with an earlier order requiring amendment to the Claimant’s statement of case. Holding that there had been non-compliance, the Court, referring to Mitchell, struck out the pleadings. There had been an application for relief from sanctions, which the Court held to be out of time, since it was made less than three working days before the hearing. On appeal, the Court accepted that no application for relief had been necessary- the Order alleged to have been breached contained no sanction for non-compliance. The application for relief had in any event not been late – it was made before any sanction was imposed. The Court allowed the appeal, rejecting the Respondent’s argument that the Court could have struck out the pleadings below under CPR 3.4 in any event.

Second, as the two cases above show, the Courts are reluctant to use powers under CPR 3.4 as a substitute for a sanction shown not to have been imposed within the relevant order or rule itself. While the power to strike-out does of course exist under that rule (or the Court’s inherent jurisdiction), it is not there to be used as a short cut where CPRs rules 3.8 and 3.9 do not apply.

Finally, there is a sense that the lower Courts consider Denton to have indicated a relaxation of the approach to be taken concerning non-compliance, whether or not that authority is directly on point in a given case. The official view expressed within Denton is that Mitchell was not wrongly decided – it is the lower Courts instead which had misunderstood Mitchell. The view has been expressed within the lower Courts that this is a matter of saving face in the Court of Appeal and that, on the contrary, Denton impliedly accepts that Mitchell was wrong, in tone if not on the facts of the given decision itself. It may be unnecessary to enquire further into the point: what is beginning to appear is a sense that Mitchell itself is being discretely cold-shouldered.

Where does this leave us?

Reference to Denton may be in order but Mitchell seems to be out. More generally one has a slight sense that the Courts below may feel that they have been doing their best to apply Mitchell (which was accompanied by and itself cited a good deal of Jackson reform implementation material), only to find that they are now being told that they should have adopted a less harsh approach. For a while at least, “robust” decision making may be more scarce than it was pre Denton.

First published on LexisPSL Dispute Resolution on 24 September 2014. Click here for a free one week trial of Lexis®PSL