Mitchell: end to opportunism

The outcome of the Court of Appeal cases dealing with Mitchell has been met with a welcoming bear-hug by the legal profession – the consensus being that common sense has prevailed. Politicians are fond of declaring that they are not for turning. But what about judges? Has Lord Dyson ‘done a U-turn’?

There is surely some backtracking going on. The much-maligned concept of ‘triviality’ has been binned in favour of looking at the ‘seriousness or significance’ of a breach. I’m not sure there is any volte-face on the concept itself. It is just the same thing, viewed from another angle, but now dressed up differently – and the effect is somewhat easier on the eye.

What about the issue of whether procedural compliance should trump justice and fairness for the parties to litigation? This comes down to how much weight should be given to ‘factors a) and b)’ in rule 3.9 – which are about the need to enforce compliance with court rules, and the need to conduct litigation efficiently and at proportionate cost.

Mitchell caused so much chaos because it placed a) and b) at the top of the tree. Or so everyone thought. Now Dyson seems to have dropped their importance down by a notch.

The master of the rolls said people wrongly believed the Mitchell ruling had elevated a) and b) to be of ‘paramount’ importance, whereas in fact they are of ‘particular’ importance, ‘and should be given particular weight at the third stage when all the circumstances of the case are considered’.

I interpret that to mean that if procedural compliance no longer ranks quite as high as everyone thought, it does still rank higher than the concept of justice for the parties who have come to court.

Regarding procedure versus justice, I prefer the line taken by Jackson LJ in these three conjoined appeals.

He agrees with Dyson and Vos LJ on the outcome of the decisions, but makes an important distinction about how rule 3.9 should be applied. When it comes to the ‘third stage’ of the rule, where the judge must look at all the circumstances of the case, Jackson says that factors a) and b) are simply among the matters to be considered – ‘no more, no less’.

Jackson endorses the Bar Council’s contention, that factors a) and b) should ‘have a seat at the table, not the top seats at the table’. Sir Rupert has clearly got it right. Complying with court rules is important, but not more important than other factors. But he has had to wait until now to make his view known.

One can only imagine the judge’s frustration as he has watched his detailed and carefully balanced package of reforms become famous – or rather, infamous – for an over-zealous approach to rule 3.9 that he did not agree with.

Returning to Dyson, the MR is clearly conscious of the havoc wreaked upon the previous culture of co-operation between lawyers – not by his judgment in Mitchell, of course, but by ‘the failure to apply Mitchell correctly’.

Taking a scythe to the ‘opportunism’ that has sprung up in the post-Mitchell landscape, Dyson warns litigators that, henceforth, lawyers who unreasonably refuse to agree time extensions or oppose relief applications will face ‘heavy costs sanctions’ and possibly indemnity costs.

This tough line on failure to behave reasonably towards opponents is good news for litigators. Many had been uncomfortable with taking such an aggressive stance over timetable slippages. But they feared that if they failed to take the shot, and potentially score a goal for clients by – for instance – getting a claim struck out for non-compliance, they might face a negligence action.

Now that the need to act reasonably has been spelt out, with potential costs penalties for failing to do so, lawyers should be sheltered from potential criticism from clients for being too accommodating over procedural issues.

Rachel Rothwell is editor of Gazette sister publication Litigation Funding