The Mitchell Table
This table contains the cases decided post-Mitchell and arranges them according to subject matter and whether the decision of the court is considered strict to Mitchell or not.
Where appropriate a short comment will be included but the primary focus of the table is to provide an accessible means of matching cases to the subject matter so users can navigate this brave new world we find ourselves in.
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| Nature of breach | Strict Mitchell approach | Non-strict Mitchell approach | Notes | Would same approach apply in light of Denton? |
|---|---|---|---|---|
| Witness statements | MA Lloyd & Sons (t/a KPM Marine) v PPC International (t/a Professional Powercraft) [2014] EWHC 41 (QB) Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624 Swinden & Anor v Grima & Anor (2014) | Chartwell Estate Agents v Fergies Properties SA [2014] EWHC 41 (QB); Court of Appeal decision at [2014] EWCA Civ 506. Davies v Liberty Place (Sheepcote Street) Management [2014] EWHC 2115 (QB) | The number of applications relating to witness statements casts doubt on Lord Dysons’s comment that Mitchell will reduce satellite litigation. What the cases bear out is that the court is unlikely to grant an application where to do so would interfere with the trial timetable.The decision in Chartwell Estate has been criticised as a climbdown from the strict Mitchell approach however it can be justified because both parties were in breach and the trial window was not affected. In giving the Court of Appeal's judgment in Chartwell, Davis LJ agreed with Globe J at first instance that the consequences of not allowing the evidence would effectively end the claim which was to be considered disproportionate. Swinden is another example of the court emphasising the importance of maintaining the trial date. The loss of a trial date could not be compensated by a court order. Although the decision in Swinden is unremarkable the facts are important as it was against the backdrop of a criminal action. Davies considers the applicability of witness statements and relief of sanction. The fact that a witness statement was served after the specified date did not mean that the defaulter was automatically precluded from relying on the statement unless he applied for and was granted relief under CPR r.3.9. The rules did not need to be interpreted in a draconian way, and to do so would treat late service of a witness statement more severely than late service of a statement of case, or disclosure, or other directions. In all those instances default did not lead immediately to the need for a party to apply for relief from sanctions, but to an application for an "unless" order, and only where there was failure to comply with that did the sanctions regime become active. | MA Lloyd & Sons- unchanged. The delay was not considered trivial and there was no good reason. Durrant- unchanged. Initial sanction was proportionate and no good reason for failure to comply. Swinden- unchanged. Failure to maintain the trial date meant that case would be allocated a disproportionate amount of resources. Chartwell Estates- unchanged. No impact upon trial date and failure to grant relief would be disproportionate, Davies v Liberty Place- unchanged. Judge considered wrong to apply the Mitchell criteria. |
| Medical evidence | Chambers v Buckinghamshire Healthcare NHS Trust [2013] EWHC (QB) | Problems instructing experts will not be considered a good reason for failure to comply with court deadlines. | Chambers v Buckinghamshire Healthcare- This is a difficult case to assess. Ultimately, the judge concluded that there was no good reason for the breach and that this was in the face of continued and lengthy delays. However, this can be seen as a draconian decision in every sense of the word and the judge appears too focused on what Denton considers the second stage in the process and gives insufficient weight to the third stage. This decision should now be treated with caution. | |
| Cost budget | Mitchell v News Corp [2013] EWCA Civ 1537 | Bank of Ireland v Philip Pank Partnership [2014] EWHC 284 (TCC) Devon County Council v Celtic Bioenergy Ltd [2014] EWHC 309 (TCC) | It is fair to assume that the court is not likely to look upon a late cost budget with much sympathy. This is not surprising given the central role the budgets play in Jackson’s reforms. Litigants may avoid the adverse consequences where there are minor technical errors however it must be stressed the errors must be minor as in Bank of Ireland. | Mitchell- unchanged.Not trivial and no good reason. Bank of Ireland v Philip Pank Partnership- unchanged. Non-compliance was considered trivial. Devon CC v Celtic Bioenergy- unchanged. However, this case is unusual in its facts as costs had been reserved so there was no question of costs being assessed at a hearing. |
| Disclosure | Wahid and Shadkam v Skanska UK Plc [2014] EWHC 251 (QB) Thevarajah v Riordan [2014] EWCA Civ 14 | Lakatamia Shipping v Nobu Su [2014] EWHC 275 (Comm) | A second bit of the cherry is possible for relief from sanctions however the appellant must come within the criteria outlined in Tibbles v SIG [2012] EWCA Civ 518.The court has allowed relief from sanction where the delay in disclosure was minimal and therefore could be considered de minimis. | Wahid and Shadkam v Skanska UK Plc- unchanged. Application would have amounted to relief from sanction and there were no grounds to grant relief required. Thevarajah v Riordan- unchanged. Case amounted to a ‘second bite of the cherry’. Lakatamia Shipping- unchanged. Non-compliance considered trivial. |
| Failure to serve Particulars of Claim | Associated Electrical Industries v Alstom [2014] EWHC 430 (Comm) | Adlington v ELS International Lawyers LLP (In Administration) [2013] EWHC B29 (QB) Raayan al Iraq Co. Ltd. v Trans Victory Marine Inc. [2013] EWHC 2969 Clarke v Barclays Bank [2014] EWHC 505 (Ch) | Although not directly related to Particulars of Claim, the decision in Clarke contains some interesting comments on the decision in Alstom and its interpretation.Parties would be well placed to remember that failure to serve particulars (or other statements of case) on time is unlikely to evoke the court’s sympathy. | Associated Electrical industries v Alstom- This decision brings into contrast the majority decision in Denton as opposed to Jackson’s LJ. Based on the majority approach, Smith J in Alstom was correct to give greater weight to factors (a) and (b) in 3.9. It is likely that the case has survived the decision in Denton however a cautious approach is suggested given that, on Jackson’s LJ approach, the justice to the parties which Smith J spoke on in Alstom could tilt the balance in favour of relief. Adlington v ELS International Lawyers- This was cited as one of the key post-Mitchell decision in Denton but no comment was made as to its status. Despite concerns it appears to remain unchanged. Raayan al Iraq Co. Ltd. v Trans Victory Marine Inc.- Disapproved in Mitchell. |
| Expert evidence | Clarke v Barclays Bank [2014] EWHC 505 (Ch) | The parties must inform each other of changes to their expert evidence. A late application to adduce expert evidence is unlikely to be successful where it prejudices the other party. | Clarke v Barclays Bank- unchanged. Claimant’s conduct amount to a serious abuse of process. | |
| Default judgment | Samara v MBI Partners [2014] EWHC 563 (QB) | Mole v Hunter [2014] EWHC 658 (QB) | Although Jackson’s report did not specifically make reference to part 13 it was intended to have application across the CPR. Parties therefore should proceed to apply Mitchell to any part of the CPR even if not previously discussed. | Samara v MBI Partners- unchanged. Non-trivial and no good reason for delay. Mole v Hunter- unchanged. Good reason present. |
| Failure to arrange a telephone hearing | Jones v Wealth Management (UK) Ltd [2014] EWHC 842 (Ch D) | Jones is of limited value as it concerns the old version of rule 3.9. | Jones v Wealth Management- unchanged. This is of limited application as it concerns the old version of rule 3.9. | |
| Application to appeal | Webb Resolutions v E-Surv [2014] EWHC 49 (QB) HMRC v McCarthy & Stone (Developments) Ltd, Monarch Realisations No.1 PLC (in administration) [2014] UKUT B1 (TCC) Collins v HMRC [2014] UKFTT 274 (TC) | Any application for appeal must be made promptly and within deadlines. | Webb Resolutions v E-Surv- unchanged. Delay not trivial and no good reason given. | |
| Failure to serve notice of funding | Harrison v Black Horse Ltd. [2013] EWHC B28 | Burton v Cranfield Delta Whiskey Group Long v Value Properties Ltd 13/1/14 Tim Yeo v Times Newspaper [2014] 2853 (QB) | Although these cases appear to be at odds it largely boils down to what is considered to be trivial in the context of the case. Lord Dyson recognised there would be discrepancies over trivial and this is something which must be borne in mind. | Harrison v Black Horse- unchanged. Not trivial and no good reason provided. Denton cited in Yeo. The breach was considered negligible and had no impact o the proceedings. |
| Failure to file an N251 | Forstater v Python (Monty) Pictures [2013] EWHC 3759 (Ch) | In Forstater the court took into account the fact that the claimant had written a letter informing of the CFA. Parties would be well advised to file the N251 early to avoid unnecessary dispute. | Forstater v Python (Monty) Pictures- unchanged. | |
| Payment on account of cost | The Queen on the application of Royal Free London NHS Foundation Trust [2013] EWHC 4101 (Admin) | Again an example of a strict application of Mitchell when it comes to meeting court deadlines. Also an example of how Mitchell has entered into previously unintended areas. | The Queen on the application of the Royal Free London NHS FT- Open to challenge. The court emphasises that the focus is now on compliance with the CPR and not the impact. Although right the decision ignores the third stage of the test in Denton. | |
| Application for extension of time where application is "in time" | Re Guidezone Ltd [2014] EWHC 1165 (Ch D) | Nugee J in Guidezone affirmed the decision of Robert v Momentum Services Ltd [2003] EWCA Civ 299 and held that where an application for an extension of time was "in time" the principles contained in Mitchell do not apply. Any application must be based on the overriding objective. Re Guidezone specifically concerned an extension of time for filing defences. | Re Guidezone- unchanged. In time application. | |
| Consent order | Summit Navigation Ltd v Generali Romania Asigurare Reasigurare SA [2014] EWHC 398 (Comm) | Mitchell distinguished on the basis that an order for security for costs was a special form of order unlike a sanction for failure to file a cost budget. | Summit Navigation- unchanged. Security for costs was a special form of order and in any event the non-compliance was trivial. | |
| Application to amend a defence | Groarke v Fontaine [2014] EWHC 1676 (QB) | Although the principles in Mitchell and subsequent cases were considered applicable to the case, Sir David Eady believed that a failure to allow an amendment to include contributory negligence would deprive the defendant the opportunity to reduce his overall liability. The court again took the opportunity, following Chartwell, to reiterate that the courts do not exist for the sake of discipline (at paragraph 7). | Groarke v Fontaine- unchanged. Justice required that the real issue be determined and no prejudice to opposing party or impact on court time. | |
| Failure to file pre-trial checklist and pay hearing fee | Decadent Vapours v Bevan (2014) (Ch.D Cardiff) | Denton et al [2014] EWCA Civ 906 | First instance decision reversed on appeal. The Court of Appeal considered that it would not be proportionate to strike out the entire claim despite the technical breaches by the claimant. The court also stated that the defendant should have consented to the relief to avoid the need for satellite litigation. | Decadent- appeal allowed in Denton. Not considered proportionate to strike out the matter. |
