MITCHELL V NEWS GROUP NEWSPAPERS LIMITED
Landmark cases reforms approach to civil claims litigation…
It was one of the most publicised political news events when Andrew Mitchell MP was alleged to have made derogative remarks to police officers at the entrance to Downing Street it what has now been famously coined “Plebgate”. Although much of the aftermath spiralled into a media circus, the much more serious issues for lawyers have been focused around Mr Mitchell’s claim for defamation against The Sun newspaper.
Although the case itself is an intriguing one, lawyers across the country were suddenly heightened by the issues surrounding the Court’s decision when a breach of procedure occurred. On 1 April 2013, the Jackson reforms revolutionised the civil litigation landscape far greater than before, introducing, amongst other things, the requirement for all parties to file and exchange costs budgets. On behalf of the Claimant, Mr Mitchell’s solicitors failed to file a cost budget with the Court and within 7 days before the case management hearing, as required by the amendments to Civil Procedure Rules (CPR), a consequence of the Jackson reforms. As such, at the hearing the Court ordered that the Claimant be treated as having filed a costs budget comprising only his court fees. He was therefore prevented from being able to claim the remainder of his own legal fees.
Mr Mitchell’s solicitors subsequently applied to the Court for relief from the sanction imposed by the Court. The Judge presiding over the case referenced the post-April 2013 overriding objective to ensure rules and Court orders are stringently complied with. The Judge therefore dismissed Mr Mitchell’s application. As a result, Mr Mitchell appealed to the Court of Appeal. In reconsidering the evidence and the interpretation of the rules, the Court of Appeal upheld the strict cost rules and it remained that Mr Mitchell would be unable to recover any legal costs beyond court fees, in the event that his case were to succeed.
The judgment handed down immediately created a landmark case in civil litigation and sent shockwaves through the legal industry. The decision made it clear that any breaches of procedure will result in major consequences for the parties in the proceedings.
In the Mitchell case, this meant, legal costs recovery was restricted to court fees only, leaving the breaching party liable for their own costs regardless of the outcome of the case. An obvious consequence of this is the inevitable increase in professional negligence actions as punished clients pursue these unrecoverable costs from their own legal representatives.
There has been some movement away from the findings in the Mitchell judgment but essentially the position is still evolving from day to day. For example, in the case of Summit Navigation v Generali, it was reported one of the parties failed to meet a deadline to file costs information by one day. Consequently, the opposing party applied to the Court that, in keeping with the Mitchell judgment, the claim should be struck out for a breach of procedure. In this instance, the Judge presiding over the case held that the application was purely to gain a ‘tactical advantage’ and that the short delay caused by the missed deadline had ‘no material impact on the efficient conduct of the litigation’. In essence, the breach was so trivial that applying the Mitchell ruling would have been unfair.
This will certainly be met with great relief many lawyers and litigants to see that a certain amount of discretion can be applied in individual cases. Furthermore, the Civil Justice Council has recently confirmed that extensions to file certain court documents may be permitted without the need to file an application with the Court. This should alleviate some of the pressure out on litigants to ensure that stringent deadlines are met and the fear of being punished for missing deadlines by even the most trivial of delays.
All in all, the morale of the Mitchell judgment has surely helped to highlight the always important need to comply and adhere to all court deadlines. Ever more so now, parties will be motivated to avoid heavy penalties for a breach of procedure. Nonetheless, it is inevitable that this moot issue will continue to rumble on as the landscape of civil litigation is ever-changing at this time.