I suppose an apology is called for at the outset for adding to the acres of print already devoted to Mitchell v News Group  EWCA Civ 1526, but as the most important procedural decision since the Jackson report it deserves attention.
There were, of course, two decisions involved. Mitchell 1 concerned the decision to impose the Civil Procedure Rule 3.14 sanction (being deemed to have filed a budget limited to court fees) in a case proceeding not under CPR part 3 but under the Defamation Costs Pilot. And with great respect, the reasoning of Mitchell 1 looks very doubtful indeed. The master of the rolls suggests at paragraph 27 that CPR 3.14 represents ‘the considered view of the Civil Procedure Rule Committee as to what constituted a proportionate sanction’. Normal principles of statutory interpretation, on the contrary, would suggest that as the committee had said one thing in part 3.14 and another in PD 51D they intended two different things. And it is not clear how proportionality as such comes into CPR 3.14 at all.
Incidentally, it is possible that a very large trick indeed may have been missed. News Group’s costs budget remained to be considered. And it appears that a budget of a frankly obscene £560k is in danger of going through more or less on the nod. But the revised Overriding Objective refers to dealing with cases justly and at proportionate cost.
And half a million per side to examine two questions – did Mitchell actually call the policemen plebs, and if he did not, was The Sun’s journalism sufficiently careful to give them a Reynolds defence – appears absurd, especially against an opponent whose budget is limited to the court fees only. ‘But master, we have a ’uman right to put in 750 chargeable hours trying to dig dirt on the opponent and to brief a fashionable and expensive silk.’
‘Not any more, you haven’t.’
But I digress. The interest of Mitchell for most of us, especially those in the real world of the county court, lies in what it says about relief from sanctions and the application of the revised CPR 3.9.
The CPR 3.14 sanction is arguably not proportionate at all; but the Court of Appeal regarded it as such before going on to consider relief from sanction. So the remarks in Mitchell 2 apply to sanctions which were proportionate in the first place.
And what the Court of Appeal says about that starts (at paragraph 40) with the observation that, certainly if application for relief is made promptly, the de minimis principle applies. ‘For example where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed… but otherwise fully complied…’ So the humorist who is reported to have applied to strike out a claim because the incorrect postcode was cited for the defendant (who had actually received the papers) can expect a very bloody nose.
If the breach is not trivial, the burden is on the defaulting party to persuade the court to grant relief. If, we are told at paragraph 41, there is a good reason for the default, the court will be likely to decide that relief should be granted.
‘Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason.’
And importantly, ‘pressure of work’ was in terms rejected as an acceptable excuse.
‘Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all.’
The Court of Appeal has returned to the subject in Durrant v Avon & Somerset Police  EWCA Civ 1624, a long-running claim against the police by an ‘intelligent and articulate’ litigant in person. Rather more than two years after the proceedings started, Mrs Justice Lang directed that witness statements be exchanged by 21 January 2013. They were not. In February, Mr Justice Mitting in terms directed that the defendant serve its witness statements by 12 March, adding that ‘the defendant may not rely on any witness evidence other than that of witnesses whose statements have been so served’.
Two statements were posted to the claimant on 12 March (so arrived after the Mitting deadline); four more were served on 22 May; yet two more were served on 5 June, five days before the start of a scheduled six-day trial. And on 15 May and 5 June the police got round to applying for relief from sanction.
Judge Birtles dealt with the applications on what should have been the first day of the trial. He followed the approach of Mr Justice Edwards-Stuart in Venulum Property v Space Architecture  EWHC 1242, looking at the old CPR 3.9 checklist before going on to consider the two considerations now specifically mentioned. And he granted relief.
He was reversed in uncompromising terms in the Court of Appeal. Factors such as the potential importance of the case to the careers and reputations of the police officers concerned might be relevant to timetabling, and to the question of what sanction to impose for failure to adhere to the timetable, but could not carry much weight in determining whether to grant relief.
And once again, talk of pressure of work got absolutely nowhere. Relief would have been granted in relation to the March statements had an application for relief been made promptly; but in the event relief was refused in the court for those statements as well.
Yes, it may appear unattractive that solicitors cannot plead pressure of work while judges are repeatedly forced to apologise for the Courts Service’s own lack of resources. But that is the principle that the appeal court has clearly laid down, in terms that are binding on judges at first instance just as they are binding on lawyers and their clients.
District Judge Hickman sits at Milton Keynes County Court. He is general editor of Civil Court Service (Jordans)