Two lawyers grappling with the post-Jackson costs regime are seeking examples of courts taking a softer approach to non-compliance with orders.
Kerry Underwood, founder of Hertforshire firm Underwoods Solicitors, and Zenith Chambers barrister Gordon Exall have appealed through social media for cases where judges granted relief from sanctions after trivial breaches of costs orders.
A hardline approach appeared to be set in place following the Mitchell judgment in October, when relief from sanctions was rejected by the Court of Appeal after a costs budget was not filed seven days before the first case management conference.
London firm Atkins Thomson, representing Tory MP Andrew Mitchell in his libel claim against The Sun, told the Gazette last week the case will not go to the Supreme Court as it concerned a procedural matter rather than a point of law.
Despite the strict approach to the Jackson reforms, which came into force last April, Underwood said there is a growing body of cases where courts have been more sympathetic. He believes that most judges have ‘strong reservations’ about the Mitchell decision.
‘We now need to get a true picture of what is happening on the ground and to counteract the view that Mitchell is the only option for judges,’ he said.
‘Lawyers are encouraged by the number of judges taking the non-Mitchell line and the many, albeit lower-court, decisions that are clearly non-Mitchell. With one exception, an academic, everyone I have dealt with thinks the Mitchell decision is too harsh.’
In December, the High Court granted relief in Adlington and 133 others v ELS International Lawyers LLP after claimants failed to complete their claim in the time allowed because they were out of the country.