Mitchell and relief from sanctions under CPR 3.9 Part 1 – cock-up or conspiracy?

One of the many advantages of not being a journalist is that I do not feel the need to react immediately when major developments occur. The news in November that the Court of Appeal, led by the Master of the Rolls, Lord Dyson, had upheld Master McCloud’s judgment in Andrew Mitchell v MGN prompted a flood of articles and comment ranging from the apocalyptic and apoplectic at one extreme to “What did you expect?” at the other.

If you missed it and want to hurry on to something else, the judgment’s narrow effect is that the failure by Mitchell’s solicitors to file a budget in time leaves him entitled to recover only his court fees if he wins; the wider effect, or so it seems, is affirmation of a policy requiring that any procedural defect except the most trivial is likely to result in severe sanctions which, actually or in practice, drive the defaulting party out of the court.

You might like to pause here and go and check the time limits on all your cases. As a rough guide, knock a day off every deadline just in case you miscalculated, treat every order as a peremptory order (see Gordon Exall’s Civil Litigation Brief on this as on anything to do with sanctions and deadlines), check whether the order says “exchange” or “serve on each other”, and make sure you don’t have square brackets in the wrong place in any document. Oh, and check your professional negligence policy. All done? Welcome back.

I used to lecture on the Bribery Act when it first passed into law, and question time was invariably interrupted by a lawyer protesting about the burdens placed on the clients. With all the politeness I could muster, I would observe that the consultation phase had passed. The law existed, and our task was to work out how to comply with it. The same applies to the rules resulting from Lord Justice Jackson’s recommendations. At one level, the Court of Appeal’s judgment in Mitchell merely confirmed what we knew anyway – that rules are there to be obeyed and that the courts are expected to behave accordingly. We need to move past the complaining stage and deal with it.

A good start is to try and establish what “it” is. To one well-known (and respected) commentator, Jackson, when added to increased court fees, legal aid cuts and other changes, is part of a right-wing conspiracy to bring down small law firms and deny justice to all but the rich; to others, the reforms bring much-needed discipline to an area in which much time and expense is wasted through incompetence and inefficiency to the detriment of other litigants and of justice generally. The reality lies somewhere between.

My focus, inevitably, is on disclosure obligations and on the related duty to provide at least an estimate of the “broad range of costs that could be involved in giving standard disclosure” required in CPR 31.5(3)(d) and, in those cases subject to costs management, a budget. Time limits apply and we know from Mitchell, if we did not know anyway, that time limits are to be strictly observed.

A few points apart, I do not intend to add to the vast body of writing on the general implications of Mitchell, that is, on policy and on matters beyond those specific to eDisclosure. You will find all the words you need on that on Gordon Exall’s excellent Civil Litigation Brief, both in his own articles and in his list – bibliography almost – of articles by others.

The wider picture

Let’s make a couple of observations first to head off any suggestion either that I under-estimate the problems or that I miss the points made by those who object to the toughness of the new regime.

1. It is not easy

First (and sticking only to disclosure, though that is only one corner of the procedural field), it is foolish to suggest that it is easy to make defensible decisions to limit disclosure and to pre-estimate the costs, still less to do it so early in the case. It takes time and skill to make the necessary assessments, and time and skill are expensive.

2. Courts and clients have similar ambitions

Second, there is no doubt that many firms can no longer run litigation profitably and at a price which clients are willing and able to pay. Many argue that cases below £100,000 are not worth running in the post-Jackson climate. Leaving aside (for the moment) the possible consequences of the Mitchell judgment, can one argue with the principle behind rules designed to increase early exchange of information, to promote an early understanding of the implications of fighting, and to encourage both efficiency and settlement?

These two points merge – those who have the skills required to acquire and assimilate the information required by the court are equally the ones who are best placed to advise clients promptly and to limit the costs thereafter. There is more money to be saved by limiting disclosure than there is by reducing hourly rates, and the rules as now amended positively encourage limits on disclosure.

3. Break down the components of the problem

Third, I buy entirely the idea that justice should be available to all, and am equally certain that it is not. Has it ever been? Sir James Matthew, the judge who coined the phrase ‘In England, justice is open to all, like the Ritz hotel.’ died in 1908, so we are not facing anything new here. It is not Jackson which has debarred the poor from the seat of justice but the withdrawal of legal aid; idle thinkers tend to conflate the effect of the legal aid cuts with the procedural reforms and blame Lord Justice Jackson for both. We really do need to break down the components of the problem before picking on one easy target. Try this: reduce charging rates to £10 per hour and leave the lawyers to take litigation at any speed they like, subject to minimal control from the courts. That will solve the access to justice problem. Won’t it?

4. Court resources are finite

Fourth, it is argued that individual justice is being sacrificed to the wider interests of litigants in general, and some query whether Parliament has authorised this; so far as I am concerned, one need look no further than CPR 1.1(2)(e) which provides that

Dealing with a case justly and at proportionate cost includes, so far as is practicable ….allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases

This sub-section has been in the rules since 1999. One US judge to whom I showed it expressed envy that we had a provision which enabled (indeed, required) the courts to consider all litigants. The Master of the Rolls’ speech relied on by Master McCloud in Mitchell is rooted in the same idea (I wrote about it here) – there is only so much justice to go round. If you don’t like that (and I don’t) you have to ask if the NHS and all those other very important things are more or less important, or perhaps ask Gordon Brown and Ed Balls why they pissed all our money up against the wall when the economy was in good shape. If the new strictness encourages competence, then few will complain; the problem is that incompetence and mere oversight seem now to be treated alike.

5. The court must play its part

Finally, the efficient dispensation of justice requires that the court is set up to perform its part efficiently. Jackson specifically recommended investment in the courts’ back office systems for this purpose – something Labour promised in Blair’s first year in office, before we realised that Blair lied as fluently about his intentions as he did about everything else. Instead, we see no investment beyond a shiny new building in London for big litigants, and we have had cuts in user-facing staff. What happens when you drive people to litigate in person by removing legal aid at the same time as you sack the helpful staff whilst failing to invest in court systems and introducing the new rules?

Cock-up or conspiracy?

The pen-pushers at the Ministry of Justice lack commerical understanding, economic sense and practical thinking; the Lord Chancellor, Chris Grayling, is as free of principle as he is of legal knowledge – he, er, “maximised” (is that the right term?) the MPs’ second home allowance and employs his wife with our money (£40,000 pa of our money to be precise, more than many lawyers earn). Grayling is a dishonest shyster, but so too was Labour’s Geoff Hoon who made all those high-sounding promises about court investment in Blair’s early days (Hoon was at least a lawyer); the MoJ has been staffed by useless time-servers for years. Both parties attacked legal aid and judicial review. We can’t blame a purely right-wing conspiracy to erode justice and the legal profession, and it doesn’t help to try and fit the Court of Appeal’s decision in Mitchell into such a conspiracy.

It doesn’t actually matter who is right about this, as long as we don’t let the conspiracy theories stand in the way of practical efforts to meet or circumvent the Mitchell challenge. The second part of this article considers this.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Jackson Reforms, Judges, Lord Justice Jackson. Bookmark the permalink.

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