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The problem, as I see it, is that Mitchell still exists as, apparently, good law and will continue to do so until specifically overruled by the courts, or a rule change. Therefore, you have to advise clients of what it says, despite the later cases rowing back hard. If the client then says you must take the point what choice do you have? If you fail to tell the client about Mitchell in the hope that 'common sense' will prevail and it doesn't you run the risk of a negligence claim.

It is all very well for these judges to come down hard on litigants who refuse to apply 'common sense', but the problem is of their making and it is therefore up to them to do something to reverse the situation. Practitioners face enough problems renewing their PII cover as it is. They can well do without the risk of satellite litigation arising out of the Mitchell decision further complicating matters.