Jackson warned you about Mitchell 26 months ago.

Unless you are an NQ, it is likely that you recall how litigation used to be during the last 5-10 years.

Defendants were able to get away with murder:

– Delays were common-place.

– Defendants complied with Directions when they wanted to, as opposed to the date in the Court Order.

– Relief from sanctions was easy to achieve under CPR r 3.9.  As if waving a magic wand, the Defendant paid costs, and this money removed any prejudice suffered by the claimant. Costs were a great antidote under the old regime.

Now, I hate to draw the analogy of “turkeys voting for Christmas”, but claimants were aggrieved at the culture of delays.

Jackson

When Jackson came along, and his reports and lectures were published, it seemed like things were about to get tougher.

For the last 6 months or so, everybody has talked about the Mitchell decision. This should come as little surprise because it seems very few people appreciated the decision in the Fred Perry appeal (http://www.bailii.org/ew/cases/EWCA/Civ/2012/224.html).  This was the biggest indication of how things were going to change.

Whatever you think about Jackson, he has remained constant. His unwavering approach to reform has been admirable, because he has managed to get the Court of Appeal on board with his reform.

Mitchell just so happened to be the first case to go to the appeal court. In my view, Mitchell was just a continuation, which followed Fred Perry.  This will be supported when the reasons are reported in the transcript of the Court of Appeal’s decision in Chartwell and Fergies.

I have read a large number of recent first instance decisions that relate to Mitchell.  The local County Court Judges will always go with the Court of Appeal on matters of procedure. While there are some exciting results in the County Courts with relief from sanctions, most litigants will not have sufficient funding to appeal.

We all know that the Court of Appeal deals with law and procedure, while the Lord/Supreme Court has always been keen to limit their cases to the law. Procedural aspects of the law are of limited stimulation for their legal brains.

The main problem that practitioners are failing on, and being Mitchelled, comes down to their failure to realise one key thing: IF YOU ARE LIKELY TO BE IN BREACH, THEN JUST SERVE ANY OLD SH*T!

By this, I simply mean, if you are unlikely to be able to comply with a Direction, get something in. Whether this is a “guestimated” budget, shoddy witness statement or an incomplete disclosure list. 

You are likely to be able to amend your original documents and serve second drafts. See it as taking the football into the corner flag during the 90th minute of a match when you are playing for a draw.

To elaborate on the above example of getting any old sh*t served, you can revise a budget, serve a second statement (be creative, such as basing this upon “new information” arising from disclosure or expert reports), and as disclosure is an ongoing obligation, it is not fatal to your claim to serve an updated list. 

The key is to just to get something in to avoid a breach. This can be treated as a holding document. I know this seems as though you are putting in sub-standard documents, but it is better to use a stop-gap document then it is to be struck out.  Sadly, this means in order to protect your client, you may need to allow your standards to slip. It is painful to write the last sentence, because it is true, but goes against most of the vocational training.

Anyway, if there are 3 things to take away from this, I will make it easy for you:

  1. The Fred Perry decision was Jackson’s constructive notice to civil litigators.

  2. Mitchell is here to stay. Chartwell and Fergies is likely to be “the updated Mitchell”. The Supreme Court is unlikely to interfere with procedural aspects anytime soon.

  3. If you are to be in breach, just get SOMETHING filed.

Over and out.

Legal Orange.

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One thought on “Jackson warned you about Mitchell 26 months ago.

  1. Pingback: CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POSTS | Civil Litigation Brief

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