The Law Society has called for clear guidance on sanctions and a re-emphasis of parts of the Mitchell judgment to make civil litigation less adversarial and more cooperative.

Intervening in three linked appeals on costs sanctions being heard by the Court of Appeal, the Society said today the Mitchell decision has had a ‘significantly detrimental’ effect on the conduct of civil litigation.

The Bar Council agreed, saying Mitchell had 'taken the civility out of civil litigation'.

David Holland QC, for the Society, said that the judgment's strict application of case management rules has led to ‘a raft of satellite litigation’ that has clogged up the courts, to inconsistent lower court decisions and a much more adversarial, non-cooperative litigation culture with increased costs.

He said the case had lead to a ‘deeply regrettable’ situation and ‘spawned a new style of litigation’ where instead of actively working together to bring a case to trial, parties are focused on ‘catching each other out’.

Holland said the Society agreed with the need for effective case management to bolster compliance with civil litigation rules, but said that involved more than sanctions for non-compliance. 

Sanctions, he said, are only part of the process of improving the exercise of swift justice at proportionate cost and should be used as a last resort. ‘They are not an end in themselves.’ Overuse, he said, removes judicial flexibility.

Holland urged the court, led by the master of rolls Lord Dyson, to give clear guidance as to how the amended provisions of the CPR should be applied and to ‘alter the emphasis in certain passages in Mitchell ’.

The Society said the major cause of hold-ups in the civil justice system is not a culture of delay or non-compliance, but lack of capacity and resources.

The effect of CPR Part 3.8 and Mitchell , it said, is that sanctions are ‘peremptory’ and do not permit the court to tailor them to fit the gravity of the failure.

Deadlines will always be missed, said Holland – and the growing numbers of litigants in person will exacerbate the situation, with many unrepresented litigants unaware of the ‘potentially drastic consequences’ of even a minor failure. However, treating litigants in person with more leniency would unfairly penalise professional advisers.

The Society called for a clarification of the Mitchell criteria, arguing that the use of the word ‘trivial’ to describe non-compliance from which relief will generally be granted is ‘inappropriately narrow’. Instead, it suggests the word ‘immaterial’, defining ‘immaterial non-compliance’ as something that ‘neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation’.

Appearing for the Bar Council, which is also intervening, Mark Friston said the bar has concerns about the way Mitchell is being applied. It has a ‘corrosive effect on cooperative conduct’ and has 'taken the civility out of civil litigation'. 

‘Consideration for one’s opponent is being seen as a fool’s luxury as there is much to be gained by being awkward, pedantic and opportunistic,’ he said.

Friston said there is ‘unease’ about Mitchell as many senior practitioners take the view the test in the case ‘is not correct’ when viewed together with the Jackson reforms, which place a greater emphasis on individual fairness. 

Adopting the Law Society’s points, the Bar Council also called for clarification on the intended effect of the judgment.