You have been Mitchelled? (Part 1)

The origin of the word “pleb” is ancient and therefore understandably obscure. The distinction between plebs and patrician seems to go back to the earliest days of the Roman Republic. By the time of the late Republic, the distinction was arcane and Plebeians had risen to important and influential positions in Roman society. Such seminal figures as Cicero, Crassus and Pompey were all Plebeians and it would hardly be an insult to be compared with any of these men.

I have no idea whether Andrew Mitchell MP did use the word “pleb”.  I am certainly not going to speculate on the subject as, judging by the costs estimates provided, I would run the risk of extinguishing my lifetime savings. The saga of the Mitchell case serves to illustrate the dynamic development of language with the alleged use of an ancient word giving rise to a new verb, that is “to Mitchell”.  The verb “to Mitchell” might be defined in the Oxford English Dictionary as, “To extinguish a party’s prospects of success in litigation by relying upon any breach of the rules”. Unusually, the verb is almost entirely used in the passive sense. Members of Chambers now regularly come into my room to tell me they have just been Mitchelled.  I can only nod sympathetically.

In the first of our two notes, we have analysed Mitchell and suggested a possible solution. In the second, we analyse the post-Mitchell decisions and highlight the practical steps necessary to minimise the risk of being Mitchelled.

What will probably interest most practitioners is how to avoid being Mitchelled. Given that the starting point of any Mitchell application will be a breach of an Order, the only possibilities appear to be:

1. Argue the breach was trivial
2. Argue that you are not seeking relief from sanctions
3. Argue that there has been a change of circumstance, so that the application can be dealt with under CPR 3.1.7

However, as will be shown in part 2, the case law to date has not been encouraging for those who seek to avoid being Mitchelled.  They can anticipate a harsh reception from the Judiciary followed by a communication with their professional indemnities insurers.  In most of cases, at the time of the making of the relevant Order and its breach, there would be no anticipation of such a draconian consequence of failing to comply. No doubt the goalposts are being moved and litigants who thought at the time they had only conceded a corner now find that, with hindsight, the opposition scored a goal. The justification for such an approach is no doubt “pour encourager les autres”. However, it is worth remembering that Voltaire in Candide was referring to the execution of Admiral Byng, with considerable irony:

“In this country (England) it is thought well to kill an Admiral from time to time to encourage the others.”

Probably the most problematical aspect of the Mitchell decision is the very broad definition of sanction. Historically, a sanction referred to an explicit consequence, in particular the breach of an Unless Order, as opposed to the implicit sanction in the breach of any Order.

Underlying this broad definition of sanction is a more basic problem with the Mitchell decision, that is an exaggerated belief in the value of judicial intervention in regulating civil litigation. There is some considerable irony in this position since it is reasonably arguable that judicial intervention at this level resulted in the climate of excessive delay and costs in such litigation.

When I started to practice in the late 1970s, an Unless Order was just that. Failure to comply could only be excused in the most extreme circumstances. Given that an Unless Order was made after the breach of an existing Order and upon application by the opposing party, it was difficult to see that such an approach would be considered draconian.

However, the Court of Appeal in Samuels v Linzi Dresses Limited [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1980] 2WLR 836 relaxed the strictness of an Unless Order and permitted significant judicial discretion after breach of such an Order. With discretion inevitably came uncertainty and satellite litigation.

Subsequent attempts through the rules such as the automatic strikeout under CCR Order 17 Rule 11(b) to create limits or parameters on persistent delay went the same way, with a large amount of not easy to understand jurisprudence developing around what was supposed to be a simple and rigid rule.

In the circumstances, it is difficult to understand why Lord Dyson thought that the Mitchell decision would result in less satellite litigation. Rather it is likely to spawn its own jurisprudence as judges at first instance, many of whom appear unsympathetic to the ruling,  seek to avoid its effects. Achieving the reasonable objective of cheap and quicker disposal of cases in civil litigation might be more likely achieved by reverting to simple, clear and fair rules; that is by restoring the position that the explicit sanction of “unless” means “unless”.

 Charles Feeny

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