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Why castigate DAC? They have a duty to do their best to protect the interests of their client, just as much as the Claimant's firm has to theirs. That or they were simply carrying out the direct instructions of their client.

Whilst there is case law indicating litigants should not be swift to seize upon minor procedural errors for tactical gain, there has been so much contradictory case law since Mitchell, with concomitant unpredictability in contentious litigation, that the outcome here was far from certain - hence why it is being reported.

Had DAC not taken the point they could just as easily have been criticised for negligently exposing their client to a potential cost liability which might have otherwise been avoided. As it is, they or their client now bear the costs of losing the point and this case can be added to the litany of those which each seek in a small way to row back from the disaster that was the decision in Mitchell.