The High Court has granted an appeal on relief from Mitchell sanctions after ruling the original judgment was overly harsh on a trivial matter.
In Long v Value Properties the Honourable Mr Justice Barling has ruled that Master Rowley’s original implementation of costs rules – which relied heavily on the Mitchell decision from last year – was an error of approach.
Rowley had said he had no choice but to refuse relief after a conditional fee agreement and other documents were submitted five days after an agreed date, and expressed ‘qualms’ about the punishment handed out.
Since that ruling in January, the Court of Appeal in the Denton case has revised the approach to relief from sanctions and stated a breach must be both serious and significant to be worthy of punishment.
Barling said Rowley appeared to have ‘fallen into the error’ identified in Denton of not considering all the circumstances of the case. ‘Had he done so he would almost certainly have granted the application [for relief],’ added Barling.
‘His instinct was to hold that the breach was trivial but he appears to have fallen into the error by attaching insufficient weight to the circumstances surrounding the breach as well as to the absence of any significant prejudice of any kind to anyone.’
The case is one of the first of an expected backlash of appeals against decisions made in the light of the Mitchell judgment.
However, Barling noted that he would have allowed relief from sanction in this case even without the clarification in Denton.
He granted relief in sanction in its entirety – meaning the success fees of counsel and solicitors of £48,462 will be recoverable from the defendants.
The judge also added a further conclusion on the conduct of the defendants, who alleged non-compliance after an oversight by the claimant solicitors in not serving all the information in the time agreed.
‘The defendants’ behaviour here has been precisely the kind of opportunistic, and non-cooperative conduct in litigation condemned by the Court of Appeal in Denton,’ said Barling.
‘Had the defendants taken a different course the matter could probably have been completely resolved within the overall period of the extension of time which they applied for and were granted by the claimant, or very soon thereafter.
‘This would have saved the parties and the court the time and expense of a lengthy hearing before the judge and an even longer appeal hearing before me.’