I know we are all probably suffering from Mitchell overload but here is another wonderful story to cheer us all up.
In my 35 years of practice I have seen some poor law (and I speak as someone who spent time in the trenches of the costs wars), but the appalling nonsense the profession is being subjected to because of this ridiculous decision really should have us manning the barricades. Let me explain.
On 19 March 2013 we issued protectively out of Northampton owing to the impending expiry of the primary limitation period. We served the full process on 17 July and received the defence on 25 July. We then received the Notice of Proposed Allocation from Northampton on 22 August and Direction Questionnaires were sent in on 12 September. The claim was then transferred to Uxbridge.
So far, so uneventful. However, on 11 October we received an order from Uxbridge advising us that the claim had been struck out for breaching rule 7.4.2. That rule states: ‘Where the claimant serves particulars of claim separately from the claim form… the claimant must within 7 days file a copy of the particulars…’
When I received the file from the terrified fee-earner and looked over it, it seemed to me that this was simply an error on the court’s part. We had not served the particulars separately, as was confirmed by our certificate of service and by the defendants themselves, who ultimately consented to our application for relief from sanctions. I fancied all that had happened was that, on transfer between courts, the full file had not gone across and the particulars had not found their way to Uxbridge.
However, we had to deal with the hand Mitchell had dealt us. Who knows how the court would interpret what had happened. First, we had to prepare the application and speak to the defendants. We then had to explain the situation to our client, stating that they need not worry as we carried professional indemnity insurance.
Marvellous for client relations. I then spoke to our COLP who had to assess the situation, as did the risk partner who had to notify our own insurers.
Ultimately our application was listed in January 2014, some three months after the original order. We instructed counsel and relief was granted. Did we receive an apology from the court? No, the district judge simply referred to the fact that as no particulars appeared on the file, the initial order was justified in the circumstances.
As you can probably tell, I’m a trifle miffed by this. We lost face with our client, had to report a potential claim to our insurers, suffered a three-month delay in progressing the case, and to cap it all, it cost us unrecoverable work in progress and counsel’s fees.
If the court felt it was missing the particulars, wouldn’t the more proportionate response have been to send out an ‘unless’ order first?
And before someone mentions Singapore, you will not convince me that the state of the legal profession and the administration of justice in general there was in any way comparable to the English legal system which, we have always been told, is the envy of the world. In any event, who is to say that their Mitchellisation was as crassly handled as ours appears to be?
So what to do then?
I really do believe it is time for the profession’s representative bodies to notify the MoJ that enough is enough and this current round of madness is bound to end in disaster. After all (and as alluded to earlier) we have all seen where overzealous policing of rules and regulations leads to – satellite litigation, escalating costs, unnecessary delays and huge injustices.
Simon Baskind, managing director, personal injury, Cohen Cramer, Leeds
