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From reading the judgment, it does seem that the Claimant's lawyers were being a little opportunistic here however on a different day before a different tribunal a completely different judgment might have been handed down.

The problems surround lack of certainty and lack of uniformity of decisions.

Mitchell was a case which upheld a rule. The advocate in the Kershaw v Roberts case refers to the "Draconian force of Mitchell" but actually the Mitchell Judges were just doing what the rules told them to do. It's the rule makers who brought into being the "Draconian" measures.

Ironically, there is reference in the Kershaw judgment to the Jackson reforms and Mitchell having been designed to reduce costs of litigation. That must have been one of those tongue in cheek moments. Very amusing.

Ultimately, whilst "rules are rules", if Court's are going to apply the letter of the rules regardless of any genuine reason to do otherwise, what do we need Judges for ? Surely a rule book ought to do it. Non-compliance = zero costs. That seems to be the message (based upon the myth that the Mitchell case dictates such drastic measures in all case of rule infringements).

From what I've seen so far, whenever the Court's have exercised their ostensibly vast Jackson powers, the punishment is far too harsh. "Proportionality" ought to feature when it comes to punitive measures being dispensed by the Courts.