The main judgment set out three stages for judges to follow. First, they must identify whether the breach of any rule practice direction, or court order was “serious or significant” – using “trivial” would only lead to semantic disputes. Second, they must consider why the failure or default occurred. “It would be inappropriate to produce an encyclopaedia of good and bad reasons.” Third, the judge must consider all circumstances of the case. There is no room for “the traditional approach of giving pre-eminence to the need to decide the claim on the merits”.

Lord Justice Jackson took a different view to the third stage. He felt that the factors in the first two stages were simply amongst matters to be considered, or as the Bar Council submission put it, “have a seat at the table, not the top seats at the table”. Ultimately what Rule 3.9 requires is that the court should “deal justly with the application”. He detailed the many hidden costs of an adjourned trial. “What litigants need is finality, not procrastination.” He stated that he was not, though, criticising the actual decision in Mitchellwhich was within the permissible range of case management discretion by the Master.