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MITCHELL, 7 MONTHS ON

July 29th, 2014

The Case of Mitchell v Newspaper Newsgroup has been much discussed and its impact felt throughout the legal profession and, in particular, those quarters dealing in dispute resolution. But seven months on, how have things developed?

In May my colleague wrote about the case. Lord Dyson, giving his judgment, perceived a greater need for parties in disputes, and of course their legal representatives, to give more weight to court imposed deadlines, and not to view them as something that can be avoided or temporarily ignored at minimal risk.

Among the principles to emerge from the case, was the need for a robust approach to case management; the intention being to cultivate a climate of compliance.  Lord Dyson observed: “‘… 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.”

Last week, Lord Dyson had an opportunity both to pass judgment on three linked appeals) which centred on the principle as established in Mitchell and, consequently, to shine a light on the principle and give guidance where he felt the lower courts had been misapplying it. Dyson said that while Mitchell remains ‘substantially sound’, he conceded there had been a raft of subsequent decisions that variously misinterpreted it or missed the essence of what it was getting it. He admitted that ‘It is clear that the guidance in Mitchell needs to be clarified and further explained…”

His guidance can, in its most basic terms, be broken down as follows:

1.  The court should assess the ‘seriousness and significance’ of the breach (i.e. of missing a deadline)

2.  The court should then consider why the failure occurred; and

3.  Thirdly the circumstances of the case itself.

So a more holistic approach is required of the lower courts, whereby, to avoid any whiff of unfairness or unreasonableness, and the breach must be viewed in respect of the nature of the case in which it occurs. It is not enough to apply a blanket, absolute ‘robust’ approach to each and every case.

Krishnan Nair is a second year trainee solicitor, currently working with Andrew King in dispute resolution.

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