The post-Mitchell era and its impact on construction litigation: Sri Carmichael - barrister, Hardwicke Chambers

The Court of Appeal’s decision in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 to uphold a refusal of relief from sanctions for failing to file a cost budget on time came at the end of a momentous month for the Jackson reform juggernaut. November began with the endorsement of a novel e-Disclosure Protocol Pack by the Technology and Construction Court aimed at cutting the cost of litigation. By mid-month civil judges from across England and Wales were convening once more at the Judicial College, a stone’s throw from Parliament, for further training on how to use their powers to tackle the escalating price of justice that is of such concern to ministers.

Since Mitchell, radical penalties have been imposed on litigants who fail to abide by court orders or the Civil Procedure Rules. Mitchell held that a “trivial” breach could be overlooked, especially where there was a good reason for it outside the control of the litigant or his solicitors. But some judges have been zealously cracking down on even the slightest slip. Reports of extreme “Mitchell-orders”, as they have become known, have spread fast, recounted by lawyers with eyes raised to the ceiling and a muttered “there but for the grace of God go I”.

One colleague in chambers saw his opponent’s defence struck out by a Circuit Judge four weeks before trial for late service of a Scott Schedule of payments that the Defendant had already made. Judgment was entered for the Claimant with enhanced interest and half the costs of the entire action on account.

Even more shockingly, a case currently under appeal involves an instructing solicitor who has had a Mitchell-order imposed because he served his precedent H form one hour late by fax. He lost £300,000 in costs.

A construction case just before Christmas saw a welcome injection of proportionality, however, when the High Court, for the first time since Mitchell, granted relief from sanctions. HHJ Oliver-Jones QC, sitting as a High Court judge in Birmingham, found that a failure to comply with an unless order to serve particulars of claim in relation to eight out of 134 claimants in group professional negligence action Adlington v ELS International Lawyers LLP (in administration) [2013] EWHC B29 (QB) was a trivial breach, as there was good reason for it. Bringing comfort to solicitors across the country, the judge held that the intention of the Jackson reforms was not “to transform rules and rule compliance into trip wires”.

Nevertheless, in the post-Mitchell era lawyers are advised to begin preparing for the case management conference as soon as litigation looms. The bar for trivial breaches for good reason may end up settling higher than trip level, but Jackson has set wide open elephant traps for lawyers who flout orders or rules simply because they are overworked or careless.