Lord Dyson heard the cases over the course of two days last week with a view to enhancing the guidance he laid out last November with the Mitchell ruling.
The Gazette understands cases across the country have been put on hold pending the outcome of the three appeals, each of which relates to application for relief from sanctions imposed for non-compliance with case management rules.
Lord Justice Jackson, who designed the rules as part of his reform of civil justice, sat alongside Dyson at the hearing. Conceding that his attempt to provide guidance in Mitchell had been unsuccessful, Dyson sought to temper expectations, saying: ‘We can’t write a lexicon with a solution for all the different problems that can arise.’
One of the cases, Denton & Ors v TH White, is an appeal against a judge’s decision to allow six witness statements that were served late. Andrew McLaughlin, representing the appellant contesting the relief, said the original judge’s approach was ‘like a tail-end batsman who took a swipe at it in an unorthodox way with disastrous consequences’.
The Law Society and Bar Council were invited to make interventions. David Holland QC, for the Society, said the judgment’s strict application of case management rules has led to ‘a raft of satellite litigation’ that has clogged up the courts, and led to inconsistent lower court decisions and a much more adversarial, non-cooperative litigation culture with increased costs. Appearing for the Bar Council, Mark Friston said Mitchell had ‘taken the civility out of civil litigation’.