A barrister who has led the way in analysing the impact of the Mitchell case has predicted that this week’s hearing of three ‘trivial breach’ cases at the Court of Appeal could pave the way for ‘Mitchell-lite’.
Gordon Exall, a member of Zenith Chambers in Leeds and author of the Civil Litigation Brief blog, said that not only did the Master of the Rolls, Lord Justice Jackson and Lord Justice Vos invite submissions from the Law Society and the Bar Council, but they asked counsel to say what they thought the Mitchell test should be.
“They don’t want the situation to go back to what it was before, but they do want to allow the parties to agree extensions of time,” Mr Exall said – the so-called buffer direction came into force earlier this month.
The Court of Appeal was considering three High Court cases, all of which involved ‘trivial’ breaches of court timetables: Decadent Vapours v Bevan and others, Denton and others v TH White and Utilise TDS v Davies and others  EWHC 834 (Ch), which involved more than one breach. Judgment was reserved.
Mr Exall said the solution might lie in bringing back a distinction between “peremptory and non-peremptory” orders, just as there had been with unless orders.
“Mitchell says that if you breach any order you have to apply for relief from sanctions and the whole Mitchell ruling and its criteria, apply. The question for the judges is how do they fix this? How do they square the circle?”
Mr Exall added that judges had been “tearing their hair out” at the number of applications they were receiving as a result of Mitchell.
Maura McIntosh, a professional support consultant at City firm Herbert Smith Freehills, said the Court of Appeal appeared to accept that the lower courts had taken an “overly mechanistic” approach in some cases.
“It also recognised the difficulties caused by a decrease in co-operation between litigating parties, who may stand to gain a huge prize from holding their opponents to account for failures in compliance.
“The court is, however, clearly concerned at how to promote greater flexibility and discourage parties taking opportunistic points, without a return to the problem the rule change was meant to address in the first place – a culture of non-compliance where parties felt they could breach rules and court orders with impunity.”