Judges as politicians – reflections on Mitchell and Denton

Williams: changes like those advanced in the Mitchell case should follow a process of consultation and testing

Posted by Ben Williams of Litigation Futures sponsor Burcher Jennings

Swathes of commentary have already emerged on the re-visitation of Mitchell v New Group Newspapers – a case so notorious it immediately developed into a verb (“I’ve been Mitchelled”) – in Denton v TH White [2014] EWCA Civ 906.

Despite the later case paying lip-service to the first (the guidance in Mitchell was said to remain “substantially sound”), the reality is that it is a profound change. A two-stage test (was it trivial; if not, is there a good reason for the breach?) has been replaced with a three-stage test. The concept of triviality itself has been replaced with one of ‘significance’ or ‘seriousness’.

The highly restrictive indications of what constitutes ‘good reason’ in Mitchell (accident or debilitating illness) are now said simply to have been examples. The statement that the need to ensure litigation was conducted efficiently and that rules were enforced were the “paramount” considerations has been disowned (although they are still of course important).

Above all, at the third stage of the post-Denton process, the court is enjoined to stand back and look at all the circumstances of the case in order to ensure that the overall outcome is proportionate.

This begins to sound like the approach advocated in the leading pre-Jackson case, CIBC v Mellon, where Arden LJ stated the importance of stepping back and taking an overall ‘look-see’ to ensure that the overriding objective was satisfied.

Like Mitchell before it, Denton is a game-changer. The court expressly indicated – twice – that it was intended to supersede all earlier cases, which ought no longer to be cited. Although they do not say it, this presumably includes Mitchell itself. So, it had a short but turbulent life. But what a life: how much costs, how much court time, how much ink, how many professional negligence claims, has Mitchell engendered in its eight months of existence?

The chaos caused by Mitchell was predictable and predicted. Many lawyers abandoned the deference usually shown to the Court of Appeal to decry it as unjust and misconceived. I doubt that it actually trended on Twitter, but it’s a mark of the shock it caused that the idea doesn’t sound completely ridiculous.

One of the problems with Mitchell is that it was essentially a policy – ie, a political – decision. The approach it advocated was not the approach stated in rule 3.9 itself, but a judicial gloss on that rule.

At this point, I would offer a thought to that despised class: the politician. With respect, part of the problem with political decisions by judges is that judges are not politicians. They are not accountable to the public, they do not participate in debate, they are protected both by professional convention and the law of contempt from the often rumbustious process by which conventional political decisions are tested. Nor do they have access to the resources of politicians: consultations, pilots, outside expertise, a skilled and permanent civil service to test policies and war-game the consequences of innovation.

By definition, cases which reach a judge are exceptional, and the higher up the judicial hierarchy the judge, the more exceptional the cases which that judge will encounter. Few judges in the Court of Appeal have experience of the hurly-burly of mass-market county court litigation. But it’s easy to forget that almost all litigation in this country occurs on the small-claims track and fast-track of the county courts – and it is there that Mitchell weaved its most destructive path.

In my experience at least, practitioners who knew that world were instantly and universally of the view that Mitchell would prove a disaster. And so it proved.

I mean no disrespect to the Court of Appeal, but I do venture that one of the lessons of this episode – as with earlier disastrous experiments such as ‘automatic striking out’ – is that profound changes to the rules of civil litigation are better left to a political rather than a judicial process.

Of course, I don’t mean that judges should not participate in that process – on the contrary, it is essential that they do. But not when actually sitting as judges. Changes like those advanced in the Mitchell case should follow a process of consultation and testing, not be imposed by a judicial decision resulting from the facts of just one case, in which only the parties themselves were represented.

President Clemenceau of France famously observed that war is too important a business to be left to the generals. With the greatest of respect, it may also be that civil procedure is too important a business to be left exclusively to the Court of Appeal.

Ben Williams of 4 New Square is a member of the advisory board of legal pricing and costs consultants Burcher Jennings

    Readers Comments

  • its not often I find myself agreeing with the whole content of any article but I do so on this occasion.
    Ben’s conclusion the civil procedure should not be left exclusively to the Court of Appeal needs a wider debate. Lawyers and their clients have gone through many months of uncertainty following the Mitchell decision which should not be allowed to happen again.
    I am not sure Denton gives us all the answers.
    How is the Legal industry going to be able to debate such issues going forward? Can the Civil Justice Council play a more pivotal role in providing a process to avoid the consequences we saw following the Mitchell decision?

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