Jackson wanted consistency; lawyers want common sense. The two are incompatible.
The problem with football pundits who moan about referees is they’re calling for polar opposites. ‘All we want is some consistency,’ they say, swiftly followed by ‘he needs to show some common sense’.
Trouble is, these are mutually exclusive. Booking Gazza at Italia 90, for example, might have lacked common sense (it meant he stood to miss out on the World Cup final through suspension) but the referee was being consistent by punishing a bad tackle. So what should he have done?
Furthermore, there can never be consistency because the laws of the game dictate that decisions are made in the interpretation of the man (or woman) in the middle. Unless we somehow create robotic referees, judging identical incidents, you will always get inconsistencies.
Different eyes, different interpretation.
So what, I hear you ask, does this have to do with anything? Apart from achieving this week’s obligatory reference to the World Cup, it goes some way to explaining why the desire for Mitchell consistency is doomed to failure.
Like a student embarking on a DVD box-set over a marathon weekend, master of the rolls Lord Dyson will hear three relief-from-sanction appeals over two days later this month . All relate to whether a breach of court guidelines could be considered ‘trivial’ – the word used by Dyson in his infamously merciless Mitchell judgment last year.
The hope, presumably, is Dyson will finally set the boundaries for what is and is not trivial, leading lawyers into the light and guaranteeing an end to this period of satellite litigation and terrified law firm admin assistants.
It’s a nice idea – the only problem is it won’t work. Lawyers want to know where they stand, but they also want judges to have the wriggle room to apply common sense. The two are incompatible.
Take the filing of costs budgets – which seems to be the main source of contention for so many post-Jackson arguments.
The rules are clear: each party must file budgets by the date specified in the notice served under rule 26.3(1) or, if no such date is specified, seven days before the first case management conference.
Plenty have criticised Dyson for the perceived harshness of the Mitchell ruling. But arguably his only mistake was to introduce the idea of a ‘trivial’ breach and leaving this interpretation open to judges.
Jackson wanted an end to the culture of law firms coming back to the court with excuses for lateness – Dyson was absolutely consistent in sticking to this principle.
But those calling for a commonsense approach are also right, in a sense. Firms should be offered leeway if they have a staff crisis, or the building has burned down. It’s patently ludicrous to undermine the process of justice for the sake of a box-ticking error, or circumstances out of your control.
So where does this leave the Dyson appeals marathon? Will we find the holy grail and conclusively define a ‘trivial’ breach? I doubt it.
Just like refereeing decisions, we will always have reason to grumble about inconsistencies. The problem all along has been no two cases and circumstances are the same. Either you apply draconian, blanket, rules or you allow common sense to prevail.
You can’t have it both ways.
John Hyde is a Gazette reporter
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