The extent to which the hard line approach taken in Andrew Mitchell v News Group Newspapers Ltd  EWCA Civ 1537 (“Mitchell”) should be applied has been further considered by the Courts.
In Hallam Estates Ltd and others v Teresa Baker  EWCA Civ 661, Jackson LJ overturned a Circuit Judge’s decision which refused relief from sanctions. In reaching his decision, Jackson LJ recognised the that CPR 3.8 shall “shortly be amended so that in the ordinary way parties can, without reference to the court, agree extensions of time up to 28 days, provided that this does not put at risk any hearing date”. He went on to state that “it was no part of my recommendations that parties should refrain from agreeing reasonable extensions of time, which neither imperil hearing dates nor otherwise disrupt the proceedings…. Nor was it any part of my recommendations that the court should refuse to grant reasonable extensions of time in those circumstances”. The decision of Jackson LJ is of immense importance for litigants since it confirms that applications for extensions of time made before the expiry of the relevant time period will fall outside of the Mitchell guidelines.
Though the Courts appear more agreeable to applications for extensions of time made ahead of the deadline in question, the same cannot be said for applications for relief from sanctions made once a deadline has passed. In Baho and others v Meerza  EWCA Civ 669, the Court of Appeal applied the guidelines it had laid down in Mitchell and refused the appellant’s request for retrospective extensions of time and an extension for an appeal notice it had served late.
Whether the Mitchell guidelines should extend to areas other than applications for relief from sanctions has also been considered by the Courts in recent weeks. In McKew v Moore  EWCA Civ 672, the Court of Appeal applied the Mitchell principles to a party’s application seeking to vary an order dismissing three appeals for non-compliance with orders regarding bundles. In refusing the application sought, Richards LJ attached great weight to the previous conduct of the appellant and its history of non-compliance. Dealing with the question of whether the Mitchell guidelines should be extended to apply to applications other than those seeking relief from sanctions, Richards LJ noted “although the matter presently before me is not in terms an application for relief, the principles relating to such an application are plainly highly relevant to it”.
In contrast to McKew v Moore, the Senior Court Costs Office in Brett v Colchester Hospital University NHS Foundation Trust  EWHC B17 refused to apply the Mitchell guidelines when considering an application to set aside default judgment obtained further to a defendant’s failure to serve points of dispute.
The Courts show little sign of departing from the hard line approach adopted in Mitchell when it comes to non-compliance. In Iran Tehran Computer Consultants Group Ltd v Fujitsu Services Ltd and another  EWHC 1474, for example, the Commercial Court refused an application for an adjournment despite the appellant being a litigant in person. In explaining his decision, Mr Justice Flaux noted “We live in a different world now with the changes in the Civil Procedure Rules, and following on from the decision of the Court of Appeal in Mitchell  EWCA Civ 1537, court orders are there to be complied with.” In contrast, however, the Court in Kopczyk v Dadoun and others (2014) was prepared to refuse to strike out the defences of four defendants who had been unrepresented for much of the litigation on grounds that the claimant had not been prejudiced in any way by the defendants’ non-compliance.
Similarly to Kopczyk v Dadoun and others, the Court in Andrew Groarke v Cecil Fontaine  EWHC 1676 (QB) allowed, on appeal, the defendant permission to amend his defence in order to plead contributory negligence on grounds that “justice and fairness required that the amendment should have been allowed so that the ‘real dispute’ between the parties could be adjudicated upon”. Material to Sir David Eady’s decision in this case was that there was “no countervailing prejudice to the Claimant” and “no need for any adjournment, any further delay or additional cost”.
The above string of cases offers some insight as to the circumstances in which the Mitchell guidelines will be applied.
For further information, please contact Georgina Squire or the Partner with whom you usually deal.