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19th Mar
Posted by: debbie

Mayo Baxter – Case Study

Karim Mohamed, in his blog of 6 December 2013, highlighted the importance of the Court of the Appeal’s decision in the case of Mitchell – v – Newsgroup International handed down on 27 November 2013.  The fallout from the decision continues and litigants are left facing a landscape fraught with dangers and uncertainties.

Parties to Court proceedings now face a situation where failure to comply with a rule, practice direction or Court Order may lead to a case being struck out.  Breaches of orders and rules which only recently would have been regarded as minor are now leading to extreme consequences. The circumstances in which the Courts are prepared to grant relief from sanction are now much more limited.

I can understand some of the concerns that have given rise to the change of approach but themeasures taken have led to yet more time being wasted and injustice. The law of unintended consequences seems to have hit home with force.

While we could once take pride in the quality of justice dispensed by our Courts, this does not now seem to be the case.  The changes give rise to a legal system where the interests of justice between parties can be ignored in an effort to further the efficiency of the State.

Up until now most lawyers have sought to take a sensible approach to an opponents’ compliance with rules and Court Orders.  With the best will in the world strict compliance is very often problematic given uncertainties and contradictions in the rules and the difficulties of predicting how a case will develop.  Often lawyers are trying to comply with Court Directions when they may have no direct control over the circumstances.  For instanceproblems may emerge in serving expert reports on time where an expert though illness or other reasons may take longer to provide a report than was anticipated. As a consequence of the decision in Mitchell, lawyers are being encouraged to take a much more combative and less collaborative approach to litigation.  This leads to more waste of time andruns against the overall aim of providing justiceand improving the management of Court litigation. We are in danger of losing sight of the need to provide a system where private individuals can seek redress for wrongs they have suffered.

Usually changes in the law in England and Wales are brought in to avoid injustice through retrospective effect.  This does not seem to be the case in the Mitchell decision where actions which when taken would have been regarded as perfectly acceptable now lead to sanction. Change seems to have been introduced without the consequences being thought through.  We now face a period of great uncertainty while the effects of the change are clarified.

Given the changes, litigants should be very aware of the need to ensure that they deal appropriately with requests from their lawyers for information and action. The Courts will be requiring strict compliance with their orders and directions.

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