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Is this the Mitchell effect? “Self-preservation ahead of collaboration”


Burton: the Court of Appeal has won

The Court of Appeal’s hardline approach to non-compliance in the Mitchell case risks discouraging parties from co-operating with each other to the detriment of litigants, a seminar on the first year of the Jackson reforms heard last week.

Kennedys’ partner Mark Burton said the penalties for non-compliance are now so extreme that parties would focus on “self-preservation, not collaboration”.

He told an event organised by the insurance law firm at Lloyd’s of London: “The Court of Appeal has won; Mitchell will improve compliance, but at what cost?”

Mr Burton said one impact of Mitchell was that “some claimants are frontloading everything they do pre-litigation so as to make themselves ‘Mitchell-proof’”. In response, some defendants may now withdraw their pre-litigation cooperation, when previously they might have offered rehabilitation or made admissions, in order to pressurise the claimant to issue proceedings and level the playing field.

Also speaking at the event, leading academic Professor Dominic Regan said further changes to the civil litigation regime were on the horizon. It was “absolutely definite that we will see more fixed costs”, he explained. He said Lord Justice Jackson would like to see fixed recoverable costs across the fast-track and thinks they would also work at the lower end of the multi-track.

Well-known claimant solicitor and costs expert Kerry Underwood predicted that difficulties caused by qualified one-way costs-shifting (QOCS) – which have yet to be explored in the first year of the reforms – “will make Mitchell look like a vicar’s tea party”.

Urging reform of the system so that the focus can be on the larger, more serious cases, Mr Underwood said that claims up to £50,000 should be handled under damages-based agreements with no costs recoverability and enhanced damages to compensate. “It’s time to stop fighting pointless battles and accept speedy justice,” he said.

Seminar chair Janet Sayers, head of the liability division at Kennedys, said: “The level of interest in the event showed how unsettled the litigation world still is almost a year since the introduction of the Jackson reforms.”