It cannot just be district judges and opportunistic solicitors to blame for the mess the original Mitchell judgment caused in our courts.
Last week’s Mitchell Part II judgment was so universally well-received it seems like I’m speaking out of turn to be critical.
But let’s give it a go.
Unusually for a sequel, Mitchell II was undoubtedly better than the original. The original judgment managed the impressive feat of being both vague and harsh, as well as opening the door to a wave of satellite litigation as solicitors nit-picked like crazy.
The new guidance, as the cliché goes, puts some meat on the bones. Essentially, it won't be enough simply for one side to show that a breach of rules or directions was not trivial, and expect automatic sanctions against the opponent. Instead, if you have a complaint to make, you shouldn’t expect the judiciary to send miscreants to the naughty corner unless their breach is serious and significant.
So far, so sensible – although it seems to me we’re still relying on subjective terms that can be applied in different ways by different judges.
But what has bothered me as a lay observer since last Friday has been the apparent lack of contrition.
Quite simply, the Mitchell guidance was disastrous for civil justice, putting solicitors under incredible stress, wasting hours of court time (and giving me repetitive strain injuries from typing M I T C H E L L over and over again).
Yet the guidance didn’t even hint at an apology – and instead seemed to blame district judges and chance-your-arm solicitors for the rash of draconian judgments and satellite litigation.
Dyson thought the Mitchell judgment had been ‘misunderstood and is being misapplied’ in some courts. Surely at least some of the blame for a work being misunderstood lies with the author?
Judges were, apparently, taking an ‘unreasonable approach’ in refusing relief from sanctions for minor and insignificant infringements.
It’s true the Mitchell guidance told judges to grant relief for an ‘insignificant failure’ to comply. But in the next breath it said that a good reason amounted to, for example, a solicitor suffering from a ‘debilitating illness or involved in an accident’.
Unless solicitors arrived in court attached to a life support machine or with their leg in plaster, is it any wonder that some judges assumed Mitchell was telling them to be strict?
As for the idea that solicitors were ‘opportunistic’ for taking advantage of this new terrain? Buck duly passed.
Of course solicitors will seek an advantage – if they didn’t do so wouldn’t they be acting negligently? Blaming them for seeking sanctions after Mitchell is like blaming a toddler for refusing to go to bed after you’ve fed them sweets and fizzy drinks.
I do hope this does not come across as churlish. I’m a big fan of the Mitchell sequel.
But the original was a bit of a stinker. Would it be damaging to the judiciary for Lord Dyson to acknowledge the part he played in the last seven chaotic months?
John Hyde is a Gazette reporter