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Raanan Berlad

The “Mitchell” Effect

Added by Berlad Graham
February 19, 2014

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Further to my earlier article regarding the “Mitchell” effect, further interesting developments can be seen looking at the overriding objective of the civil procedure rules, in particular, the overriding objective that governs the way in which litigation is conducted.

At Part 1.1 of the Civil Procedure Rules (CPR), when the Court is concerned with dealing with a case justly and at proportionate cost, a new addition to the sub section has been added, to say that it is equally important for the court to look at enforcing compliance with rules, practice directions and orders.

Clearly, the judiciary are clamping down on any tolerance they have had so far on non-compliance with rules or orders.

An example can be seen following the recent decision in MA A Lloyd & Sons Ltd v PPC International Ltd [2014] EWHC 41 (QB).  The parties agreed by consent to extend time for service of witness statements but the court held they must also apply to the Court for an order by consent for the statements to be admissible.  In the post-Mitchell, post-Lloyd world, parties are increasingly unlikely to agree extensions of time which used to be common practice.

The post-Mitchell effect can be further amplified in CPR 3.9 where the Court may consider relief from sanctions when such were imposed due to non compliance. The new shorter definition of the rule implies clearly that, yet again, the Court is far less tolerant of mistakes and non compliance generally.  The focus now appears to have changed slightly.  Whereas before the Court was concerned with dealing with the case justly quickly and in a proportionate manner in terms of costs, now it is equally important that the Court looks at compliance with rules, practice directions and orders.

In my view in the very near future, another ruling would have to be made as recent decisions seem to suggest the environment that has been created by the new ruling is simply unworkable.