Mr Justice Andrew Smith misunderstood the criticism of him made by the Court of Appeal in Mitchell when issuing his latest ruling on relief from sanctions last week, a fellow judge has suggested.
Last Monday, in Associated Electrical Industries Ltd v Alstom UK  EWHC 430 (Comm), Smith J struck out a case where the claimant had been 20 days late in serving particulars of claim.
He noted that the Court of Appeal had criticised his pre-Mitchell ruling in Raayan Al Iraq Co Ltd & Ors v Trans Victory Marine Inc & Ors  EWHC 2696 (Comm), where he granted relief from sanction after the claimant was two days late in serving its particulars.
However, on Thursday, Mr R Hollington QC, sitting as a deputy High Court judge in Clarke v Barclays Bank Plc & Anor  EWHC 505 (Ch), said he doubted whether Smith J had applied correctly what the appeal court had said about Raayan.
Mr Hollington said: “In Mitchell, the Court of Appeal significantly did not say that his earlier case had been wrongly decided, only that it disapproved of his reasoning. In its later decision in Thevaraiah v Riordan  EWCA Civ 14, in my judgment it is clear that Richards LJ was not saying that Raayan al Iraq had been wrongly decided: all he was doing, consciously obiter and without argument, was echoing the Mitchell judgment, i.e. it was the reasoning alone that the Court of Appeal disapproved…
“In my judgment, there is no reason to doubt that Raayan al Iraq was rightly decided on its facts. It was a case where it would bring the law into disrepute with right-thinking users if the courts were to enforce procedural discipline by striking out the claim.
“My understanding of Mitchell is that the court should strive to be a tough but wise, not an officious or pointlessly strict, disciplinarian.”
In a blog on the AEI ruling, leading costs commentator and outspoken Mitchell critic Kerry Underwood characterised Smith J’s ruling as attacking the Mitchell decision. He wrote: “What the judge is saying here, in unambiguous language, is that the Court of Appeal has forced him to be ‘disproportionate’ – nice twist on a key Jackson word – and ‘unjust’, resulting in the claimant, unjustly obviously, being struck out.”