Certainty over sanity?

Does the size of your litigation practice matter post Mitchell?

Posted by Neil Rose, Editor, Litigation Futures

The result of the Mitchell appeal was the one most anticipated – to do anything other than uphold the tough line on relief from sanctions would have been seen as undermining the Jackson reforms.

This was particularly the case for the Master of the Rolls, Lord Dyson, who led the court, given the speech he gave on the eve of J-Day about the importance of compliance after 1 April (and let us not forget that the Jackson reforms sprang from the judiciary in the first place). He had to walk his own talk, so to speak.

Indeed, he went so far as to expressly agree with himself in the ruling. Having quoted from that speech, Lord Dyson said: “We endorse this approach.”

The fact is that, had the courts been more robust in applying the pre-April 2013 Civil Procedure Rules, and had lawyers not got so lax in complying with them, we wouldn’t have needed Jackson in the first place. There was never a ruling like this one to set the tone, however. The message could not have been much clearer, which in one way is a good thing (although it does run the risk of parties looking to play games so as to put the other side in jeopardy of a sanction).

But much of the reaction has been angry, arguing that the court has put procedural justice ahead of justice between the parties. As Francesca Kaye, president of London Solicitors Litigation Association, put it, does the decision sacrifice merits and flexibility on the bonfire of compliance and efficiency? Or more pithily on Twitter from Jon Lord of Costs Advocates: “Certainty over sanity and punishment over parity.”

Certainly the emphasis on the courts taking a broader view of the impact of delay on the system as a whole shifts the dynamics. In this regard, it did not help the claimants in Mitchell that in order to find time in her diary to list the application for relief within a reasonable time, Master McCloud needed to vacate a half-day appointment which had been allocated to deal with claims by asbestos victims. Not hard to see where the sympathy would lie between the two.

Rules are rules, and are there to be complied with – nobody would disagree with the principle; it is the brutality of the sanction in this case that is the difficulty. Many more decisions like this and, come the review of Jackson in a couple of years’ time, that will be where calls for change will focus.

And what of the impact on lawyers, aside from the not insignificant matter of losing their costs? Sympathy for the profession’s travails was in short supply in the appeal court. “We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason,” Lord Dyson said.

“Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all.

“This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner.”

Could an unplanned consequence of this ruling be to push out the small or niche firm? While, again, one cannot disagree with the principle that law firms should have the appropriate resources in place to conduct litigation in an efficient and compliant manner, running a legal practice is not as black and white as the court makes out.

It will also be interesting to see what professional indemnity insurers make of it all.

We will be talking about this ruling for a long time to come. Perhaps in 10 years’ time Andrew Mitchell will be remembered less for what he achieved in the political world, and more for his impact on the litigation world.