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The Mitchell judgment was no one-off, says Dominic Regan in his latest article for the New Law Journal.
Never has one decision* generated so many more in so short a time. While the senior judiciary has, as we shall see, utterly accepted the new strict approach to default, I hear many stories of district judges still applying the old approach. Their game is dangerous as appeals are probable. What follows is a snapshot of some of the key authorities that shed further light upon default.
More important than anything else is to accept that Mitchell is not an aberration. The Court of Appeal has since affirmed the case twice. In Durrant v Chief Constable of Avon And Somerset Constabulary  EWCA Civ 1624,  All ER (D) 186 (Dec), Lord Justice Richards said: “Equally, however, if the message sent out in Mitchell is not to be undermined, it is vital that decisions under CPR 3.9 which fail to follow the robust approach laid down in that case should not be allowed to stand. Failure to follow that approach constitutes an error of principle entitling an appeal court to interfere with the discretionary decision of the first instance judge.” His warning could not be clearer. Appreciate that he sat in Mitchell itself.
A month later and we had Richards LJ again, this time in Thevarajah v Riordan and others  EWCA Civ 15,  All ER (D) 111 (Mar). The unfortunate judge being appealed was castigated. His approach to interesting the new CPR 3.9 was wrong in principle, lacking the robustness called for by the new guidance. Additionally, the judge had also erred in failing to take as the starting point the assumption that a sanction in an unless order, not having been appealed or varied later, had been properly imposed and honoured the new overriding objective.
These three appeals were heard by seven different members of the Court of Appeal. Sir Rupert Jackson has had no involvement with any of these decisions, directly or indirectly.
(click here to read the rest of the article)
*Mitchell v News Group  EWCA Civ 1537,  1 WLR 795.
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 Regan. The full article was first published by New Law Journal on 24 March 2014 and is reproduced with permission.
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