Mitchell Decisions

The High Court shows no signs of departing from the hard line approach adopted in Andrew Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 (Mitchell), as this latest raft of decisions illustrate.

Utilise TDS Ltd v Davies and others [2014] EWHC 834

The dispute between Utilise TDS Ltd (“Utilise”) and Neil Cranstoun Davies & others concerned an action for declaratory relief. Pursuant to an order of District Judge Matharu, parties were required to (a) file costs budgets by 4 pm on 11 October 2013; and (b) by 4 pm on 15 November 2013 notify the Court of the progress of negotiations. Utilise failed to comply with the order by filing its costs budget at Court 41 minutes late and failing altogether to notify the Court of the results of negotiations with the defendants. In response to these breaches, Utilise was limited to recovering its Court fees only. Utilise applied for relief from sanctions on the basis that each delay was trivial, in accordance with the guidelines set out by the Court of Appeal in Mitchell. District Judge Matharu refused to consider each breach in isolation and therefore denied Utilise relief from sanctions. Utilise appealed the decision but on 24 February 2014, His Honour Judge Hodge QC rejected Utilise’s appeal, finding that “the combination of two breaches of the same order, and the complete lack of any explanation for either of them” was sufficient to refuse the grant of relief from sanctions.

Medical Supplies and Services International Ltd v Acies Engineering Ltd and another [2014] EWHC 1032 (QB)

Medical Supplies and Services International Ltd (“MSASIL”) brought proceedings against Acies Engineering Ltd and another, alleging misuse of confidential information. An Unless Order was imposed on MSASIL as a result of its failure to comply with its disclosure obligations. The consequences of breaching the Unless Order were expressly stated to be that MSASIL’s claim would be struck out and the defendant would be entitled to its costs. MSASIL appealed the Unless Order due to concerns it had regarding the disclosure of confidential information. At the appeal hearing, Judge Saffman ordered that MSASIL was only required to produce certain documents for inspection by 27 September 2013. MSASIL, however, failed to give inspection of any documentation by 27 September 2013 and accordingly the defendants sought to have the claim struck out.  MSASIL applied for relief from sanctions, contending that the subsequent order extending the deadline for inspection to 27 September 2013 did not have the consequences of the earlier Unless Order. Having considered all the circumstances, Judge Behrens found that the sanctions imposed by the Unless Order should remain in force. As there was no good reason for MSASIL’s failure to give inspection by 27 September 2013, Judge Behren therefore rejected MSASIL’s submissions and refused its application for relief from sanctions.

Emakpose-Patrick v Lowell Portfolio [2014] EWHC 1090

On 17 December 2013 Ms Emakpose-Patrick applied for an extension of time for appealing against a bankruptcy order made against her on 17 December 2013. Ms Emakpose-Patrick was at first instance refused an extension of time to appeal since she “offered no explanation let alone excuse for failing to appeal within time”. Ms Emakpose-Patrick appealed the decision. Having regard to the delay, the cost of the litigation to date and the probability of success, Mr Justice Morgan refused to grant Ms Emakpose-Patrick an extension of time for the appeal to be brought, notwithstanding that Ms Emakpose-Patrick was a litigant in person without the benefit of legal advice.

Cooper v Bank of Scotland plc [2013] EWHC 4645 (Ch)

On 10 July 2010, Mr Mark Cooper (“Mr Cooper”) issued proceedings against Bank of Scotland plc, alleging that it had paid monies out of Mr Cooper’s accounts without authority. An order for directions was made requiring parties to exchange witness evidence by 19 July 2012. It was expressly provided in this order that evidence would not be permitted at trial from any witness whose statement had not been disclosed in accordance with the order. On 22 May 2012, Mr Cooper was adjudged bankrupt but was discharged from bankruptcy on 22 May 2013. Partly because of his bankruptcy, Mr Cooper failed to comply with the order for directions requiring exchange of witness evidence and sought relief from sanctions. The District Judge refused Mr Cooper’s application and Mr Cooper appealed. Mr Cooper sought to show that he had reasonable grounds for not complying with the order for directions made earlier in the proceedings, namely that the delay lay with his trustee in bankruptcy. Judge Pelling was unconvinced by this argument, noting that “it is not open to the claimant to invite the Court to ignore the delay that resulted while the cause of action was vested in the trustee, any more than it would be open to any other assignee of a cause of action to invite a Court to ignore the defaults of the assignor”.


The above cases are a clear warning to litigants and practitioners that a failure to comply with Court deadlines will not be tolerated, save for the most trivial of breaches.

For further information, please contact Georgina Squire or the Partner with whom you usually deal.