The Master of the Rolls has urged lawyers to show patience while the courts get to grips with the Mitchell ruling, suggesting it may take further guidance from the Court of Appeal before the current furore over relief from sanctions dies down.
Closing a Civil Justice Council event on Friday on the first year of the Jackson reforms, Lord Dyson said that despite the criticism leveled at the decision during the day, he remained “fairly unrepentant about what we said” in the ruling.
He argued that nobody had criticised the principle that relief should be granted if a breach is trivial or occurs for good reason – the problems had come in the application of this approach, and he said he had heard of some “ridiculous” decisions by district judges not granting relief.
While the Court of Appeal expected judges to be firm, “the guidance has to be applied in a sensible way”.
Referring to another speaker’s example of a small firm where several fee-earners were indisposed by illness and other problems, he suggested this would be a good reason for non-compliance.
But “it is not for the CJC or any other body to provide extra-judicial guidance on how Mitchell should be applied” – instead, the usual method of testing it through the courts had to run its course.
Lord Dyson said: “I am in no doubt that over the next 12 months there will be cases in which the Court of Appeal will have to decide whether a lower court has applied the Mitchell guidance properly, so you will have to be a little patient.”
On other issues, Lord Dyson said he was “hopeful” that the rule committee would agree to insert the 28-day buffer order developed by the QB masters for clinical negligence into the CPR so as to “obviate the need for pre-emptive applications for time extensions”. However, if a party then wanted a further extension, “I hope it will be an uphill struggle for them to get one”.
It was explained earlier in the day that embedding the order into the CPR, rather than directions, meant local practices would not emerge.
Other issues that would be looked at, Lord Dyson said, were the problems caused by cases that crossed the 1 April 2013 introduction of the reforms and the wider application of qualified one-way costs shifting. There was a particular call at the event to apply QOCS to actions against the police.
The MR also told delegates that he was “optimistic” that new courtroom technology would become a reality in the next year or two.