Mitchell-proofing your claim from the cradle to the grave

It’s not that difficult.

I recall at the time of the Fred Perry judgment, Lord Jackson gave an insight about the harder line approach he wanted to see employed by the judiciary.  I am not pro-Mitchell, but before it happened, I was keen to see an end to defendants getting away with too much freedom. It seemed that Unless Orders were only useful for getting a piece of paper to the top of an opponent’s pile of work.

Amusingly, post-Mitchell, it is now more difficult to achieve an Unless Order on paper. That is why it is easier to go for strike out without an Unless Order.

Enough musing and pussy footing around; how do we Mitchell-proof our claim?

Rule 1. FRONTLOAD your claim. I repeat – frontload your claim.

One more time for luck…


A costs budget can only interfere with the future costs. Those already incurred are practically untouchable in terms of getting a budget approved.

Rule 2. Follow this prescriptive approach:

  • review papers and advise client
  • place on funding
  • draft a chronology
  • obtain a proof of evidence from key witnesses
  • draft a witness statement based on your evidence
  • instruct an expert
  • conference with expert if necessary (by telephone)
  • letter of claim
  • chase letter of claim
  • application for pre-action disclosure if the defendant fails to admit liability and disclose relevant documents
  • take stock of position (i.e. do you still think you will win?)
  • advise client
  • undertake further enquiries to capture evidence that relates to defendant’s denial of liability
  • instruct counsel to settle particulars of claim and provide short advice
  • further enquiries based on counsel’s advice on evidence and other matters you may have overlooked
  • make Part 36 offer
  • serve draft claim form, notice of funding and particulars of claim with Part 36 offer – invite settlement
  • issue proceedings if not settled
  • refuse extension of time to serve defence if the defendant has already investigated claim
  • review defence and advise client
  • brief conference with counsel and/or expert regarding defence
  • prepare Reply to Defence or Part 18 request if necessary
  • complete Directions Questionnaire
  • agree directions with defendant that provides for 7 or 14 day extension on time to comply with a direction without the need to apply to the Court (see Gordon Exall’s blog for more on this)
  • instruct in-house costs draftsman or external draftsman to prepare Precedent H schedule to be filed and served AT THE SAME TIME as the Directions Questionnaire
  • complete the disclosure statement but don’t go nuts as the court doesn’t care about it and it simply ticks a box
  • advise client and make a Calderbank or time limited offer along with a Part 36 offer for a different sum
  • attend CMC and costs management hearing if court lists a hearing

Rule 3: State the obvious at the costs management hearing. The arguments are straightforward and there is little you can state that will be anything but “old arguments”.

Keep an eye on the standard points:

  • over-reliance on counsel
  • compare the fee earner grades for each party – unless it is A versus C, the court is unlikely to intervene
  • highlight the number of leaver arch files of documents you need to go through to complete disclosure (tip: order smaller lever arch files from your stationary budget!)
  • hourly rate of experts

Directions should be handed down by the Judge towards trial. These are unlikely to be controversial:

– disclosure

– inspection

– witness statements

– experts

– schedule of loss

– counter-schedule

– listing questionnaires

– pre-trial review

Rule 4. Work through directions.

This is not very difficult if you have conducted the claim in accordance with Rule 1.


  • You have the disclosure documents from your disclosure statement and enquiries from both you and counsel
  • The proof of evidence has allowed you to draft an initial statement. Revise and update the statement to take into account the defendant’s response to letter of claim, their defence and disclosure documents.
  • Instruct the expert – you have the disclosure documents, witness statements and a Court approved budget.
  • Arrange for experts to meet and lodge joint statement.  Get your trainee to handle this easy step.
  • Prepare schedule of loss. This will probably be assisted with the expert evidence and is quite frankly another easy document.
  • Review counter-schedule.
  • Instruct Counsel for evidence review and/or hold conference to discuss stategy and tactics going towards trial.

Rule 5. Make sure you have served copies of the Court Orders on everyone you can think of. This includes your client and expert. Badger the people you need to comply with the Order. Do not be afraid to harass your costs draftsman or expert as you control the payment of their invoice.

Rule 6. If your opponent makes a mistake then point it out. Take every procedural point that is humanly possible. If they are in breach, and you have agreed for Directions to have an extension of time up to X days, then send a draft application for strike out and threaten to make it if they remain in breach at the end of X days. Then make good on this threat as you will not require an Unless Order.

Rule 7. This is the MOST IMPORTANT RULE which is why it is typed in shouty uppercase.

All of the above is only possible if you have a manageable caseload. The problems with compliance tend to arise from fee earners operating at maximum capacity. Ensure you have enough fee earners and support staff at all times. Litigation takes priority. Anything pre-lit can wait.

While this is a management task, the fee earners should also take on the responsibility to manage their individual caseload. If you are struggling then tell your supervisor that you need to offload some files, or not take on any additional tasks.

Do not be afraid to produce a copy of the Mitchell transcript to your supervisor if you really must!


Over and out.

Legal Orange.


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