*/
The explosion of satellite litigation following the decision in Mitchell v News Group Newspapers has led to the Court of Appeal’s judgment this July in Denton, Decadent and Utilise – an attempt to clear up misunderstandings, offer further guidance and implore the legal profession to promote “access to justice at proportionate cost” and not to take advantage of mistakes made by opposing parties “in the hope that relief from sanctions will be denied and that they will obtain... litigation advantage”.
“The court will be more ready in the future to penalise opportunism,” the Master of the Rolls and Lord Justice Vos warned. At stake was the interpretation of the “relief from sanctions” provisions in Civil Procedure Rule 3.9, which the Rules committee had drafted while rejecting the wording proposed by Lord Justice Jackson, whose comprehensive review of civil procedure led to changes in the Rules and who provided a separate judgment in this appeal.
The main judgment set out three stages for judges to follow. First, they must identify whether the breach of any rule practice direction, or court order was “serious or significant” – using “trivial” would only lead to semantic disputes. Second, they must consider why the failure or default occurred. “It would be inappropriate to produce an encyclopaedia of good and bad reasons.” Third, the judge must consider all circumstances of the case. There is no room for “the traditional approach of giving pre-eminence to the need to decide the claim on the merits”.
Lord Justice Jackson took a different view to the third stage. He felt that the factors in the first two stages were simply amongst matters to be considered, or as the Bar Council submission put it, “have a seat at the table, not the top seats at the table”. Ultimately what Rule 3.9 requires is that the court should “deal justly with the application”. He detailed the many hidden costs of an adjourned trial. “What litigants need is finality, not procrastination.” He stated that he was not, though, criticising the actual decision in Mitchellwhich was within the permissible range of case management discretion by the Master.
The main judgment set out three stages for judges to follow. First, they must identify whether the breach of any rule practice direction, or court order was “serious or significant” – using “trivial” would only lead to semantic disputes. Second, they must consider why the failure or default occurred. “It would be inappropriate to produce an encyclopaedia of good and bad reasons.” Third, the judge must consider all circumstances of the case. There is no room for “the traditional approach of giving pre-eminence to the need to decide the claim on the merits”.
Lord Justice Jackson took a different view to the third stage. He felt that the factors in the first two stages were simply amongst matters to be considered, or as the Bar Council submission put it, “have a seat at the table, not the top seats at the table”. Ultimately what Rule 3.9 requires is that the court should “deal justly with the application”. He detailed the many hidden costs of an adjourned trial. “What litigants need is finality, not procrastination.” He stated that he was not, though, criticising the actual decision in Mitchellwhich was within the permissible range of case management discretion by the Master.
The explosion of satellite litigation following the decision in Mitchell v News Group Newspapers has led to the Court of Appeal’s judgment this July in Denton, Decadent and Utilise – an attempt to clear up misunderstandings, offer further guidance and implore the legal profession to promote “access to justice at proportionate cost” and not to take advantage of mistakes made by opposing parties “in the hope that relief from sanctions will be denied and that they will obtain... litigation advantage”.
“The court will be more ready in the future to penalise opportunism,” the Master of the Rolls and Lord Justice Vos warned. At stake was the interpretation of the “relief from sanctions” provisions in Civil Procedure Rule 3.9, which the Rules committee had drafted while rejecting the wording proposed by Lord Justice Jackson, whose comprehensive review of civil procedure led to changes in the Rules and who provided a separate judgment in this appeal.
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
Giovanni D’Avola explores the issue of over-citation of unreported cases and the ‘added value’ elements of a law report
Louise Crush explores the key points and opportunities for tax efficiency
Westgate Wealth Management Ltd is a Partner Practice of FTSE 100 company St. James’s Place – one of the top UK Wealth Management firms. We offer a holistic service of distinct quality, integrity, and excellence with the aim to build a professional and valuable relationship with our clients, helping to provide them with security now, prosperity in the future and the highest standard of service in all of our dealings.
Is now the time to review your financial position, having reached a career milestone? asks Louise Crush
If you were to host a dinner party with 10 guests, and you asked them to explain what financial planning is and how it differs to financial advice, you’d receive 10 different answers. The variety of answers highlights the ongoing need to clarify and promote the value of financial planning.
Most of us like to think we would risk our career in order to meet our ethical obligations, so why have so many lawyers failed to hold the line? asks Flora Page
If your current practice environment is bringing you down, seek a new one. However daunting the change, it will be worth it, says Anon Barrister
Creating advocacy opportunities for juniors is now the expectation but not always easy to put into effect. Tom Mitcheson KC distils developing best practice from the Patents Court initiative already bearing fruit
National courts are now running the bulk of the world’s war crimes cases and corporate prosecutions are part of this growing trend, reports Chris Stephen
Let’s hear it for the assessors, says Dame Anne Rafferty of the KC Selection Panel. And to make silk assessors’ lives a little easier when applicants come calling in May, Dame Anne fields some commonly asked questions