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Court of appeal reject appeal in Plebgate (Mitchell) case

Posted: in by Michelle Barron.

The background to this case is well known. At first instance it was held that,

“The explanations put forward by the claimant’s solicitors are not unusual ones. Pressure of work, a small firm, unexpected delays with counsel and so on. These things happen, and I have no doubt they happened here. However, even before the advent of the new rules, the failure of solicitors was generally not treated as in itself a good excuse and I am afraid that however much I sympathise with the claimant’s solicitors, such explanations carry even less weight in the post-Jackson environment.”

Mitchell’s appeal in seeking relief from sanctions was also a key test of the judiciary’s approach to the management of litigation – and for costs lawyers, the need for clients to strictly adhere to court rules on costs budgeting.

The case was fast-tracked to the Court of Appeal, where the case was heard by Lord Dyson, the Master of the Rolls, with Lord Justices Stephen Richards and Elias.

The Court of Appeal held that the Master had been correct and that the sanction would stand. The defaults were not minor or trivial and there was no excuse for them (over-work had been advanced). How strictly the courts would enforce compliance with rules, practice directions and court orders would depend upon the nature of the default:

“If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. The principle ‘de minimis non curat lex’ (the law is not concerned with trivial

things) applies here as it applies in most areas of the law. Thus the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms [40] …mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason [41] … Although it seems harsh in the individual case of Mr Mitchell’s claim, if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback [59] … In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders [60] …”

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