This is the second of (at least) three sequential posts about different aspects of the Court of Appeal’s decision in Mitchell v NGN. The first was called Mitchell and relief from sanctions under CPR 3.9 Part 1 – cock-up or conspiracy? and looked at the context in which this judgment is set. This one looks at the problems which the judgment gives and at some of the ideas which have been canvassed to mitigate its effect, not least as a result of some other judgments.

The preceding section is really aimed at those who seek a simple answer to a multi-layered and complex set of problems. Blaming Jackson lets us off having to think about the real issues here, as do easy blasts about right-wing conspiracies (and in case you missed the point, my references in that post to Blair, Brown and Balls were a deliberate descent into the sandpit of easy political name-calling. I mean every word, but it does not help us fix the problem in hand, which is the decision in Mitchell).

The problem, and one which Mitchell exacerbates (deliberately, so far as one can tell), is that there now appears no gap between damaging incompetence and the kind of oversight and inadvertence which any of us might commit, nor is any relevant distinction drawn between very big cases in specialist London courts and small ones in provincial county courts. Quite apart from any differences of scale, there is a reason why some judges get elevated to the Court of Appeal and others do not.

Objectors (and I am with them on this) see several issues here in addition to extra costs. Top of the list is the encouragement given to lawyers to trip each other up, most particularly by refusing to extend time or to forgive transgressions which have hitherto been part of the give and take of litigation. The resulting conflicts cost time and money which would have been better spent getting the case on the road. They will often not discriminate between breaches which cause actual prejudice – incurring expense, or delaying trials for example – and those which are mere technical breaches. There is an argument that a lawyer may have a duty to his client to take every point in circumstances where taking that point may blow the defaulting party out of the water. That is the American way and, as well as causing its own expense, it gives rise to the very satellite litigation which the Court of Appeal says it is keen to reduce – pre-emptive applications within a case and the subsequent negligence claims.

This – the use of procedure to undermine opponents – seems inevitable in the absence of strong judicial control. The judge in SG DG Petrol SRL -v- Vitol (see Gordon Exalls’ article here) said “In Mitchell the Court of Appeal was not putting an enhanced tactical weapon into the hands of non-defaulting parties to the litigation”. That was not their Lordships’ ambition, to be sure, but I am damn certain that it will be the effect.

The judgment in the pre-Mitchell case Wyche v Careforce Group PLC (in fact a disclosure case, and one in which relief was granted) included this passage:

“The culture which the court seeks to foster is a culture in which both sides take a common sense and practical approach, minimising interlocutory disputes and working in an orderly and mutually efficient manner towards the date fixed for trial. It would be the antithesis of that culture if substantial amounts of time and money are wasted on preparation for and conduct of satellite litigation about the consequences of truly minor failings when diligently seeking to comply with an “unless” order.”

The Court of Appeal in Mitchell expressly disapproved this approach. By implication, it also undid the conclusion in Re Atrium Training Services (the link is to Exall again), a disclosure argument in which a binary conclusion on deadlines (disclosure in time or not?) shaded into a more subjective question about adequacy (whether or not in time, was disclosure in compliance with the rules and the order?) – that is why Gordon Exall’s article is called Have you complied with an “Unless” order? Guidance in the context of eDisclosure.

Some think that the comforting Atrium conclusion in favour of the allegedly defaulting party may have gone out of the window with Mitchell; if so, we face the possibility that allegedly defective disclosure – the wrong keywords, a finding that our search may have been made in good faith but was not a reasonable one – is the same as no disclosure at all by the deadline. We need some good judges to keep within Mitchell whilst restraining bully-boys (and girls) who seek to take every point just in case they can “win” on procedure; as I have suggested, duty may make bully-boys of us all.

A case worth looking at is another Court of Appeal judgment called Abercrombie and Others v Aga Rangemaster Ltd (2013) EWCA Civ 1148.  You don’t need to read the full case report, because Kerry Underwood has pulled out the best of it in his article Relief from Sanctions: Division in Court of Appeal. One need not agree with everything Kerry Underwood says (I can skip past his comments about the “Jackson 5” for example, well practiced by now at filtering the sheep of masterly reporting and analysis from the goats of enraged commentary) to be impressed by his conclusion that Abercrombie gives an alternative (and co-equal) view of the post-Jackson balance between efficiency and justice.

I look to Kerry Underwood again for a report on a post-Mitchell case called Aldington v ELS International Lawyers LLP. His article Relief from sanctions: High Court declines to follow Mitchell pulls the key paragraph from a judgment of HHJ Oliver-Jones QC, sitting as a Judge of the Queen’s Bench Division of the High Court. Of that paragraph, the part which matters is this one:

“bearing in mind that the relationship between justice and procedure has not changed so as to transform rules and rule compliance into trip wires, and “nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice”, I am satisfied that relief should be granted in all the circumstances of this case”.

The quotation within that sentence comes from the speech made by the Master of the Rolls when he endorsed the apparent severity in the new rules; it was that speech which Master McCloud relied on, in part, in delivering her judgment in Mitchell.

To balance the sensible (“carefully-worded”, as Kerry Underwood puts it) conclusion in Aldington, we now hear of a District Judge who, it is said, struck out a costs budget because of square brackets round the statement of truth – see Exall More Mitchell mayhem: Use of square brackets leads to costs budget being disallowed. I would like to see the written judgment before condemning this as idiocy, but I have met a few DJs who (how can we put this?) demonstrate that the civil judiciary encompasses a very broad range of talents and intellectual levels.

If we see more of this sort of thing – Jackson principles of severity reduced to petty nit-picking by buffoons – don’t think that this is new. My favourite cartoon on judges is this one from the Times of, I think, about a decade ago.

If we don’t have enough uncertainty from this sort of thing, questions arise as to the circumstances in which CPR 3.9 applies at all. There seems to be an assumption post-Mitchell, at least on the part of bullish applicants, that the courts are supposed to apply CPR 3.9 severity to any default. Is that right? CPR 3.9 applies on an application for relief from sanctions and if the rule or order which has been breached, however badly, is not accompanied by a provision for sanctions then ….. you get the picture. Oh, and what about rules whose breach may imply sanctionable conduct?

These points came up on a late-night discussion on Twitter in which most of the participants were solicitors or barristers who meet these challenges all the time – I emphasise that Twitter was our forum to anticipate the mockery from the many lawyers and others who think it clever to sneer at Twitter as being about “What I had for breakfast”. Sneer away, but there is no other medium in which the up-to-date anecdotes from the front line can be passed around and discussed like this. That matters when we are all scrabbling to find some level of consistency (or loopholes to exploit, as the case may be) from courts up and down the land.

The indefatigable Gordon Exall (one of those involved in the Twitter discussion) has given us a thoughtful post on on this called Do you need to apply for relief from sanctions or an extension of time?). All one can say with any certainty is that the apparent certainty expressed in Mitchell is nothing of the kind. Perhaps.

So where do we stand, and what do I think? We seem to be rushing fast down the road to the damnation which is the US Federal Rules of Civil Procedure, under which proportionality is sacrificed to procedure and lawyers are encouraged to take every point and therefore to protect themselves against every foreseeable point. That was not the intent of the rule-makers in either jurisdiction nor, strictly, is it what the rules require. After Mitchell, and notwithstanding Abercrombie and Aldington, we must assume that every defect might be sanctionable, that relief is unlikely, that every deadline should be treated as absolute and that every point should be taken.

As to what I think, I repeat what I said in opening – what I think is neither here nor there at a point where we seem to be getting different reactions from different courts. I support the need for better compliance with the rules, for remembering the overriding objective (the clue is in the name), and for better use of the court’s time for the benefit of all by reducing waste (which is not the same, as some put it, as elevating judge time over everyone else’s time). I think Master McCloud had no option when she found against Mitchell and (hate me, do) think that the CoA was right to uphold her on the rules as they stand.

It is the next bit which goes wrong. Sure, it is the job of the Court of Appeal to give guidance to judges, and there is sense in the idea that parties should expect some level of consistency of approach between courts. It is a big jump from there to the apparent removal of judicial discretion to do what is right for the case. And consistency seems to be further away than ever. The point being missed is one which Lord Justice Jackson emphasised at every one of the many talks I heard him give – one size does not fit all. We seem to have lost that in what appears anyway to be a doomed attempt to impose consistency between courts and cases of wildly different scale.

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