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Court of Appeal to rule on ‘trivial’ breaches in Mitchell triple-header

Lord Dyson [1]

Lord Dyson: a chance to clarify his thoughts on Mitchell

Lord Dyson, the Master of the Rolls, is to rule on the proper application of the Mitchell principles to three cases involving ‘trivial’ breaches of timetables at a Court of Appeal hearing next month.

The Mitchell ruling, in which Lord Dyson gave the lead judgment, has been attacked for being Draconian in its approach to minor breaches of court-ordered timetables and spawning a wave of satellite litigation.

Vikram Sachdeva, a barrister at 39 Essex Street chambers, acted for the appellants in one of the cases. He said that although there have been Court of Appeal judgments following on from Mitchell, there had been “no case which purports to resolve the controversies”.

He said the three cases due to come before the Court of Appeal on 16 and 17 June would cover the questions of what is a ‘trivial’ breach of a court timetable, how courts should exercise their discretion in dealing with the issue, and what they should do if there was more than one ‘trivial’ breach.

Mr Sachdeva represented the claimants in Utilise TDS v Davies and others [2014] EWHC 834 (Ch) [2].

Judge Hodge QC, sitting as a High Court judge, ruled in the case that there was no “good reason” for him to interfere with the exercise of discretion by a district judge in refusing relief from sanctions

He said the claimants were responsible not only for one act of non-compliance with a court order, but a “second non-compliance with the very same court order” and the “complete absence of any attempt to explain” either breach.

Judge Hodge said the district judge was entitled to take the view the second act of non-compliance “rendered what would otherwise have been a trivial breach a non-trivial one”.

He said that, on the evidence before the district judge, there was clearly no good reason for the non-compliance. Dismissing the claimant’s appeal, he added that the application for relief from sanctions was not made promptly.

Judge Hodge said this lack of promptness would “in itself” have entitled the district judge to refuse the application for relief from sanctions

The other cases to be heard together by the Court of Appeal next month are Denton and others v TH White and Decadent Vapours v Bevan and others.