I feel bound to comment (using my right of ‘freedom of speech’ in this country, which I trust has not been further circumscribed by the Jackson reforms) on the Court of Appeal judgment in Mitchell.
Having read and re-read the judgment carefully, it is my view that, when confronted by various paths down which to choose to travel, the learned appeal judges have deliberately chosen to deliver a judgment in terms which (in any other non-legal context) would be described as being those of ‘extremists’ and ‘fundamentalists’. The result is that it is a judgment which will, henceforth, be held in terrorem over all litigators for the foreseeable future.
There was no real need for such a judgment to be delivered in such extreme terms. It was patently a matter of calculated choice.
It is suggested (by the judges) that their judgment is not an ‘extreme’ decision, because they did not determine that a relief from sanction should only be granted ‘in exceptional circumstances’, and that they only determined that such relief should be granted ‘more sparingly than previously’. This contention (a clear attempt on their part at a pre-emptive rebuttal of ‘extremism’) simply does not bear close examination.
This is because they have now determined that, in cases 1) where ‘no prejudice has been caused’ to the other party (and where, on the contrary, a ‘windfall’ has now been bestowed upon the other party – see paragraph 17 of the judgment); 2) where, in effect, the punishment is the loss of the entirety of all costs and disbursements (except court fees) by a firm of solicitors, which could run into many hundreds of thousands of pounds (the precise or likely amount of which they appear to have been virtually oblivious to. There is not a single comment or assessment by them, in this context, in respect of the enormous size of the sum of £506,425 which was in issue in this case, and which was, in effect, cast into the bin by them.
Is that an error in law in the context of the criterion of ‘proportionate’?); 3) where ‘there was now to be a shift away from focusing exclusively on doing justice in the individual case’ (itself, a remarkable admission, of sorts); and 4) where the issue of ‘disturbing the court timetable’ is, arguably, exaggerated (in order to seek to support their desired ultimate proposition), a truly stunningly severe penalty will be imposed on the offending party, with very few exceptions.
In my view, this judgment represents, incontrovertibly, a very minor distinction between an ‘exceptionally extreme’ and a mere ‘very extreme’ interpretation of the law. For all practical purposes, it is nothing less than draconian.
And all done in the cause of seeking to bring about a ‘change of culture’ in obeisance and devotion to ‘compliance with the court rules’. As the judgment itself states (paragraph 59): ‘Although it seems harsh in the individual case of Mr Mitchell’s claim [a further admission by them, of sorts, but still a gross understatement of the reality], if we were to overturn the decision to refuse relief [when, of course, they had various other less extreme options of differing, but still significant, severity] it is inevitable that the attempt to achieve a change in culture would receive a major setback [this latter phrase is simply a very subjective exaggeration. A less severe, and more reasonable, option would still have had a very significant positive impact on what they were seeking to achieve. The implication that this was their only sensible and effective option is, frankly, rejected. This is surely a valid area of public debate within the legal profession].’
And what is the provenance and legal status of ‘guidance speeches’ of proposed recommended ‘robust interpretations’ (of the new rules) by eminent judges that appear to have been ‘grafted on’ to the basic Jackson reforms, as initially presented to the legal profession and to parliament? When were the contents and substance of these ‘guidance speeches’ first placed before parliament? The ‘guidance speech’ of the master of the rolls, expressly quoted with approval in the judgment (paragraph 38), was delivered on 22 March 2013, only a matter of days before it all became law on 1 April. Did parliament fully ‘take on board’ and/or understand the real ‘agenda’ of these senior judges? Please produce to us copies of excerpts from Hansard indicating full knowledge by MPs or ministers of the contents of these ‘guidance speeches’ that were actually fully and extensively discussed in parliament at the material time. Do they even exist?
When the Jackson reforms were being ‘discussed’, and the legal profession was being ‘charmed’ on all sides to swallow them in their virtual entirety, it was clear to many of us that the legal profession (and parliament) were ‘sleep walking’ into an unreasonable regime across a broad field. This judgment confirms the validity of those apprehensions and reservations.
Name and address withheld on request