A senior costs judge points to tensions between procedure and justice.

When it comes to the Mitchell judgment, pretty much every member of the legal profession – claimant or defendant – seems united in opposition to its logic. True, I have heard one barrister suggesting that the judgment itself is fine, and the only problem is with the way that it is being interpreted. But then several Court of Appeal judges were in the room at the time.  

So we already know that lawyers disagree with the way the Mitchell ruling places more weight on the importance of procedural compliance, and less on the issue of justice in the individual case.

The far more interesting question, though, is what do the judges make of Mitchell?

Earlier this month, I went to a Westminster Legal Policy Forum discussion on the Jackson reforms. In quite a low key way, Master Hurst, the senior costs judge - who is due to retire this year - raised a somewhat pertinent point about Mitchell. He drew attention to the ‘tension’ the ruling creates with the overriding objective – which of course requires judges to deal with cases justly.

Here’s what master Hurst said:

‘In [Mitchell] we had a discussion about the tension between various ideas about justice.

‘In the course of their judgment, the Court of Appeal referred to a case called Wyche v Careforce Group, which was not an appeal before them, just one that had come to their notice, in which the judge acceded to an application for relief under 3.9 for two failures which he described as “material in the sense that they were more than trivial”, but he said they were unintentional or minor failings in the course of diligently seeking to comply with the order.

‘The Court of Appeal considered that well-intentioned incompetence, for which there was no good reason, should not usually attract relief from sanction unless the default was trivial.

‘And in another case, Ryaan Al Iraq v Trans Victory Marine, again it was not an appeal before the court, it was a case which had been brought to their attention, and they said the judge was focusing exclusively on doing justice between the parties in the individual case, and not applying the new approach which seeks to have regard to a wider range of interests.

‘Now it’s not for the senior costs judge to question what the Court of Appeal say, but it does occur to me that we have an overriding objective which requires the court to deal with cases justly and at proportionate costs. So there is definitely a tension there.’

Master Hurst also pointed to Mr Justice Smith’s decision in Associated Electrical Industries Limited v Alstom, in which the Mitchell decision led the judge to strike out a claim for late service of particulars despite this being disproportionate.

‘Again, you have that tension with the overriding objective,’ said Hurst.

I’m quite sure most lawyers would agree.

Rachel Rothwell is editor of Litigation Funding magazine