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The explosion of satellite litigation following the decision in Mitchell v News Group Newspapers has led to the Court of Appeal’s judgment this July in Denton, Decadent and Utilise – an attempt to clear up misunderstandings, offer further guidance and implore the legal profession to promote “access to justice at proportionate cost” and not to take advantage of mistakes made by opposing parties “in the hope that relief from sanctions will be denied and that they will obtain... litigation advantage”.
“The court will be more ready in the future to penalise opportunism,” the Master of the Rolls and Lord Justice Vos warned. At stake was the interpretation of the “relief from sanctions” provisions in Civil Procedure Rule 3.9, which the Rules committee had drafted while rejecting the wording proposed by Lord Justice Jackson, whose comprehensive review of civil procedure led to changes in the Rules and who provided a separate judgment in this appeal.
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.
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.
The explosion of satellite litigation following the decision in Mitchell v News Group Newspapers has led to the Court of Appeal’s judgment this July in Denton, Decadent and Utilise – an attempt to clear up misunderstandings, offer further guidance and implore the legal profession to promote “access to justice at proportionate cost” and not to take advantage of mistakes made by opposing parties “in the hope that relief from sanctions will be denied and that they will obtain... litigation advantage”.
“The court will be more ready in the future to penalise opportunism,” the Master of the Rolls and Lord Justice Vos warned. At stake was the interpretation of the “relief from sanctions” provisions in Civil Procedure Rule 3.9, which the Rules committee had drafted while rejecting the wording proposed by Lord Justice Jackson, whose comprehensive review of civil procedure led to changes in the Rules and who provided a separate judgment in this appeal.
The Chair of the Bar reports back
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