Focus on: Mitchell
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Light at the end of the tunnel?
Despite the strong words coming out of the Court of Appeal, it remains to be seen if all judges will toe the line over CPR, leaving open the possibility that litigation may become a bit of a lottery when looking for relief over sanctions. In Adlington and 133 others v ELS International
Lawyers LLP, His Honour Judge Oliver-Jones QC sitting as a Judge of the Queen’s Bench Division of the High Court, granted relief from sanctions in a case “involving a clear failure to comply with the requirements of an Unless Order”. The Judge said that “it might be argued that
"All this has happened after decades of exasperation from the judges, where
they make orders and they're just not followed and I think what they've said is 'thus far and no further'," he says. "And to be fair to the judiciary they went around saying this would happen,"
he adds. Not only did they hold meetings outlining their expectations, says Exall, but there were also publications released on the matter, as well as a speech made by the Master of the Rolls last March which clearly stated the judiciary's desires in relation to CPR. "The people who get hit are the people who weren't looking at this," he
continues. "There's a lot of comment on my website saying that litigation shouldn't be done by amateurs and so on, which is very true. This has not come out of the blue – there have been warnings." Edwards agrees, saying that Mitchell is simply a continuation of the attitude
adopted by the judiciary at the time of the Civil Justice Reforms. He argues that if the Court of Appeal had allowed Mitchell's lawyers to file their budget late then the decision would have undermined the reforms, particularly as there had already been examples of some courts finding reasons to excuse parties from sanctions last year. Mitchell was therefore an opportunity to set the record straight. He adds that the court reinforced its point over Mitchell by going through some of those lenient decisions and outlining why they were in all probability mistaken. "So the Court had no alternative but to make the decision it did, otherwise the whole reform package would have been a waste of time," says Edwards. ●
40 /Claims Magazine/Issue 11
I have not had sufficient or proper regard to (a) the 'wide range of interests' identified by the Master of the Rolls in paragraph 51 of the judgment in Mitchell… and/or (b) 'the new more robust approach' referred to in paragraph 46 and outlined in the paragraphs which preceded it. I make it clear that I have not ignored these important principles nor focused exclusively, or even primarily, on doing justice between the parties in this individual case, although clearly I have had to consider the latter in the context of the former. "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.” Commenting in his blog on this first post-
Mitchell decision at this level, Kerry Underwood said that the judge had paid full lip service to the Mitchell decision, but implied that Mitchell was wrongly decided. "We have reached a fine state of affairs when
a Judge has to make it clear that he has not 'focused exclusively, or even primarily, on doing justice between the parties in this individual case' although in fact that is exactly, and rightly, what he has done," he wrote.
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