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Civil Litigation Section

The Mitchell criteria and the new CPR 3.9

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Amendments to CPR 3.9 were designed to simplify an application for relief from sanctions. But, as Gordon Exall suggests, the new rule has in fact lengthened submissions, citations and the extent of applications for relief.

When CPR 3.9 was amended, the avowed aim was, according to the second Jackson report, to simplify an application for relief from sanctions: “it simplifies the rule and avoids the need for judges to embark upon a lengthy recitation of factors” (para 6.7). However, I would suggest that the available facts and figures demonstrate that, far from simplifying matters, the new CPR 3.9 has lengthened submissions, citations and applications for relief from sanctions.

The judgment in McTear

  • It is interesting to look at the most recent reported decision (at the time of writing) of McTear v Williams [2014] EWHC 722 (Ch), in which the judge considered eight cases that dealt with relief from sanctions. The first paragraph of the judgment reviews the cases and notes that permission to appeal to the Court of Appeal has been given in one and that there is an application pending to the Supreme Court in another. The eight cases considered by the judge in McTear were:
  • Mitchell v News Group Newspapers 60 paragraphs / 8,835 words
  • Durrant v Chief Constable of Avon and Somerset Constabulary 56 paragraphs / 7,793 words
  • Thevarajah v Riordan 39 paragraphs / 6,818 words
  • Lakatamia Shipping Co Ltd v Nobu SU 41 paragraphs / 4,008 words
  • Chartwell Estate Agents Ltd v Fergies Properties SA 41 paragraphs / 4,235 words
  • Summit Navigation Ltd v General Romania Asigurare Reasigurare 63 paragraphs / 7,259 words
  • Associated Electrical Industries Ltd v Alstom UK (a private limited company) 49 paragraphs / 9,622 words.

That is a total of 349 paragraphs and 48,570 words for the court to consider. Assuming that some of the paragraphs may be superfluous, and the court can safely be referred to only 25% of each case, that is reduced to 87 paragraphs and 12,187 words. This is assuming that, in future cases, an advocate does not want to refer to the McTear judgment itself (a further 106 paragraphs).

The old CPR 3.9

By way of contrast, the old CPR 3.9 consisted of nine elements contained in 10 sentences with a total of 139 words. The guidance given by the Court of Appeal to judges was clear – go through the criteria.

A life more complicated

So, for the present, a relief from sanctions is a far more laborious affair.

(1) The starting point is the Mitchell judgment, usually closely followed by Durrant.

(2) Thereafter, the parties usually take the court through each of the cases that support their particular position.

What does the future hold?

It won’t be long, of course, before the Court of Appeal reiterates the point that every case is fact-specific, and that parties should not attempt to pick over the finer points of particular examples where a discretion is (or is not) exercised. However, an advocate is unlikely to run the risk of being negligent in not pointing out a factor in their client’s favour mentioned in any earlier judgment. I have found that solicitors instructing counsel in these cases are extremely keen to point out parallel cases and that certain points support their client’s arguments. This is in the context of applications that can, in many cases, determine the outcome of the action. It is hardly surprising that these issues are raised vigorously and fully. Applications for relief from sanctions are likely to become more complex as the case law develops.

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