UK: Andrew Mitchell MP v News Group Newspapers Limited

Last Updated: 3 December 2013
Article by Julia Staines

The Court of Appeal's judgment – 27 November 2013

The facts

In the midst of the now infamous 'Plebgate', Andrew Mitchell MP commenced proceedings against NGN for defamation (in respect of an article published in the Sun Newspaper in September 2012). Unfortunately for Mr Mitchell and his solicitors, those proceedings have taken on their own infamy in the world of civil procedure.

The case is subject to CPR51D (the Defamation Proceedings Costs Management Scheme), under which the parties were obliged to prepare and file costs budgets not less than 7 days before the Case Management Conference (CMC) – a regime not dissimilar to that which now applies to most multi-track cases.

Mr Mitchell's solicitors failed to comply with CPR51D, instead filing their client's budget the night before the CMC. At the CMC the following day, Master McCloud made an order that "the Claimant shall be treated as having filed a budget comprising only the applicable court fees". In doing so, she had regard to CPR3.14, although CPR3.14 was not directly applicable to the case (because it only came into force after the claim was issued). The Master explained that it was "an indication as to what may be an appropriate sanction for breach of the requirement to lodge a budget". The Claimant was given permission to apply for relief from what the Master accepted was a Draconian sanction.

Mr Mitchell's subsequent application for relief from sanctions was heard on 25 July and, in a very robust judgment, Master McCloud refused relief. She referred to the fact that "judicial time is thinly spread" and the need to allocate a fair share of judicial time to all litigants. She said "the CMC is not supposed to be the starting gun for proper consideration of budgeting".

The message was that the advent of the Jackson Reforms heralded a stricter approach to rule compliance.

Mr Mitchell appealed.

Court of Appeal judgment

The Court of Appeal's judgment was handed down on 27 November 2013. The 18- page judgment is in two parts. The first part contains the salient points from Master McCloud's judgment, and sets out the reasons why their Lordships conclude that the Master was entitled to make the order that she did. But nearly one third of the judgment (pages 11-16 inclusive) is taken up with what their Lordships call "General comments on CPR3.9". These pages are essential reading for litigators.

In summary:

1 Litigation must be conducted efficiently and at proportionate cost; And

2 compliance with rules, practice directions and court orders should be enforced.

These are the two cornerstones of the Jackson Reforms, and are stated by their Lordships as being "of paramount importance".

They then go on to say that, in accordance with CPR3.9, the court is required to consider "all the circumstances of the case, so as to enable it to deal justly with the application". But they explicitly state that "other circumstances should be given less weight" [than those listed in 1 and 2 above].

In addition, it is important to remember that justice in individual cases is of less importance than the need of the court to have regard to the needs and interests of all court users.

The new approach in practice

  • Start by considering the nature of the non-compliance. If it is trivial, the court will usually grant relief if an application is made promptly.
  • If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief.
  • The court will need to consider whether the default occurred for good reason. The weaker the reason, the more likely the court will be to refuse to grant an extension.
  • In short, good reasons are likely to arise from circumstances outside the defaulting party's control.
  • Relief from sanctions should be granted more sparingly than previously.

Conclusion

The Court of Appeal has confirmed the new no-nonsense approach to noncompliance. All deadlines should be diarised and complied with. If time limits cannot be met, an early application is advised. Sympathy from the court will now be in short supply!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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