Focus on: Mitchell
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the CPR and all orders made. They must also ensure that they have the resources to meet procedural obligations," he said. Claims Magazine columnist Kerry Underwood led the
calls of indignation over the decision. Writing on his blog (
kerryunderwood.wordpress.com), he said: "Right has not been done to Mr. Mitchell. Right will not be done to many other fellow citizens if this wholly punitive, disproportionate and unjust decision is followed."
Taking action No matter the wrongs or rights of the ruling, with the courts
playing No More Mr Nice Guy, Gordon Exall, a barrister with Zenith Chambers in Leeds, says that every prudent litigator must get to grips with their cases. "The upshot of the Mitchell decision, is that if you don't
comply with the rules, and it's other than a trivial breach, then you are very unlikely to get relief from sanctions," he says. "There will almost certainly be blood on the carpet.
Traditionally, litigation has been played out in a much more relaxed manner with court directions being viewed as directions and not orders and now they've got to be viewed as orders. "And those litigators who don't get a grip on that now, and I
mean now, are soon going to find themselves with real problems." Long-term, the wider consequences of the Mitchell decision
for firms could be very significant, says Exall. "Management in law firms traditionally is about asking if you
are earning enough money. It's all about cash flow and of course there's every good reason for that.
"From now onwards, if you want to do litigation then you've
got to check if you're earning enough money and be able to comply with court orders. So the idea that you can just pass piles of work onto people and they can still make a living might not be right," he says. Paul Edwards, head of costs litigation at Hill Dickinson, says
that when he circulated an email about the Court of Appeal decision to staff, a colleague of his described it as terrifying. "If you look at it from a fee earner's perspective, then I think
firms are going to have to consider how cases are conducted," he says. "No longer can cases be left to be run by people who aren't
qualified or experienced enough to deal with them or people who are simply too overburdened so there's going to have to be a rethinking from some on how they're run, whether that be additional supervision or smaller caseloads, to ensure that deadlines aren't missed." Edwards says that firms have no choice but to adapt to the
new realities of litigation. "The bottom line is that court rules are there to be followed
and it doesn't matter if you are a claimant or defendant. "If the rules say you must do something by a date and they
also clearly tell you what the sanctions will be if you don't do it, then I don't think people can complain. And that goes for both sides of the fence being under pressure because of this." How quickly firms change their mindsets in this way could be
crucial to their survival. As Edwards says, letting go of old habits may be tough.
Claims Magazine/Issue 11/ 37
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