Solicitors were pessimistic following the Mitchell judgment but the judiciary’s stance in some cases proves justice is still on offer, says Alexander May.

Last summer, Master McCloud’s decision in Mitchell started alarm bells ringing within the legal community, but everyone expected an appeal and most expected the decision to be reversed. So widespread was the feeling that, despite no application having been made, Master McCloud granted leave to appeal of her own motion.

But the winter came and brought only cold winds from the Court of Appeal. The world had changed and solicitors have been shocked, though, perhaps unsurprisingly, not into silence.

On the contrary, talk had been of the judiciary having made a ‘mockery of fairness’ by imposing a ‘climate of fear’. The question on everyone’s lips has been: where will it all end?

Finally, answers are beginning to emerge. It may not be the end of the Mitchell story but, to steal a better man’s phrase, it is the beginning of the end. After a string of cases, which came to the same conclusion as Mitchell, recently there have been some going the other way.

Before considering those cases, it is worth reminding oneself of the ratio in Mitchell. It can arguably be expressed in very short terms: relief will be granted if the non-compliance was trivial or there was good reason for it.

Perhaps least surprising was the honourable Mr Justice Males’ decision in Vivek Rattan v UBS AG. This was an application of one party for the other to be treated as having filed a costs budget containing only the court fees. The ‘default’ complained of was the filing of the costs budget on the agreed date and not by the agreed date (although the judge questioned whether these were not the same in any case). The learned judge described the application as ‘manifest nonsense’ and went on: ‘If relief from sanctions had been necessary, which in my judgment it was not, the case for such relief would have been overwhelming.’

In Nelson v Circle Thirty Three Housing Trust Ltd the Court of Appeal considered a defendant to possession proceedings who had failed to comply with an unless order requiring her to deliver up, amongst other things, copies of credit card statements. In this case the court had no difficulty granting relief from sanction. Mitchell was not mentioned in the judgment, but the principles applied seem to fall squarely within its regime.

Their lordships found that the defendant had made reasonable efforts to comply with the order and her failure was no fault of her own but that of the bank which had failed to supply the requested documents. The breach was not trivial, but there was a good reason for it. It is worth noting that this case would probably have never reached the Court of Appeal if the judge at first instance had not been ‘given a completely muddled picture’.

More surprising was the decision in Chartwell Estate Agents Ltd. v Fergies Properties SA and Hyam Lehrer. In this case the claimant had failed to serve witness evidence on time and was therefore barred from adducing oral evidence at trial without the court’s permission or relief from sanction. The claimant relied on the defendant also having been unready although the defendant blamed the claimant’s failure to comply with disclosure obligations.

Although there was fault on both sides, there seemed to be very little real excuse. The judge pointed out that it would have been open to either party, for example, to deliver statements to the court in a sealed envelope pending filing by the other party. In a judgment which, like Mitchell, found fault with the lawyers and punished them rather than the parties, Mr Justice Globe granted each party a further seven days to comply, but made no order as to costs of the application.

Finally, a case has come to light which was unreported and yet gives, perhaps, the clearest of indications as to where the limits of the Mitchell judgment are to be found, Summit Asset Management Ltd v Andrew Clive Coates. Mr Coates was subject to an unless order that if he failed, by a certain date, to file a compliant defence, he would be struck out. That order was made by Master McCloud on 31 October last year.

By the time it reached Mr Coates on 12 November, he had just three days left to comply. Mr Coates emailed the court asking for more time before the deadline expired but, unsurprisingly given the short timeframes involved, he heard nothing back. He filed what he thought was a compliant defence (at this time he was a litigant in person) but failed and judgment was given to the claimant.

The day before the Court of Appeal considered Mitchell, an application was filed for relief from sanction and 10 days later, the writer found himself arguing the points at a hearing before Master McCloud herself.

A careful reading of her judgment in Mitchell was, of course, key and enabled the cases to be distinguished on a number of fronts. The court had criticised Mr Mitchell’s solicitor for not having applied for relief from sanction until after the deadline had passed and, most importantly, not having contacted the court at all until it was too late. Master McCloud recognised that it would have been ‘disingenuous’ then for her not to have credited Mr Coates for having taken the trouble to try and contact the court to ask for more time.

In Mitchell, the court had also considered carefully whether the party asking for relief had been given adequate time to comply with the relevant order and concluded that he had. Master McCloud had intended to give Mr Coates two weeks to comply with her order, but by the time the order reached him, he had just three days. The master had no difficulty in finding that this was insufficient and made Mr Coates a victim of procedural unfairness which was out of his control.

Finally, the court noted in Mitchell that he was not ‘driven from the court’. This may have referred to the fact that the default on the part of his solicitor would have to be paid for by the solicitor and not Mr Mitchell himself. He was therefore, no doubt, able to continue to pursue the claim. Mr Coates’ defence had been struck out and, absent relief, that would have been the end of the matter.

It was also argued on behalf of Mr Coates that the breach was trivial. He had failed to include a statement of truth and his pleadings would have been more appropriate to a witness statement than a defence. He failed to explicitly admit or deny the various allegations made against him. However, it was contended that these were failings of form rather than of substance. The court considered that, though harsh, litigants in person were to be treated just the same as lawyers. Under the circumstances, therefore, the breach was not considered trivial.

Nevertheless, given the distinguishing features, Master McCloud was prepared to give relief. In the event she found it unnecessary to offer relief from sanction directly (and this may be considered key to her decision). Instead she simply waived the procedural irregularity in Mr Coates’ email requesting more time (not having been a compliant part 23 application) and granted that request. The judgment made it clear however that, had it been necessary, relief would have been granted in this case.

We have had to wait nearly six months for it to appear, but finally we now have confirmation that, whilst the rules have been tightened up, our concerns that fairness had been lost were unfounded. Where parties act conscientiously to abide by the rules, justice is very much still on offer.

Alexander May is a solicitor advocate at QualitySolicitors Burroughs Day