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Civil procedure post Mitchell - The frightening reality

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With all the upheaval that has resulted following Lord Justice Jackson’s Final Report in his Review of Civil Litigation Costs, Brethertons were pleased to provide a free Webinar in conjunction with Credit Today on the changes to CPR, r. 3.9 (which concerns Applications to reinstate or for relief from any sanction imposed by an Order or rule) as well as providing an update following the ground breaking decisions in Andrew Mitchell MP v. News Group Newspapers Limited [2013] and Denton and anor v. T. H. White Limited and anor [2014]. On Thursday, 14th August 2014, Mark North (Client Services Manager) and I were extremely pleased to welcome listeners to my webinar “Civil Procedure Post Mitchell – The Frightening Reality”.

The webinar was, in essence, an extension of the articles that had recently appeared in Credit Today on the same subject (“Lord Jackson’s Reforms – Litigation’s Sword of Damocles” and “The Sword Swings… and misses?”).

Starting with Charles Dickens’ Bleak House, I took listeners on a stroll through the history of the issues that have plagued litigation since before the Judicature Acts of the 19th Century. We considered attempts to expedite proceedings in the 1990s with the automatic sanction under CCR, Order 17, Rule 11 and Lord Woolf’s proposals for all encompassing change with a move to greater case management and more appropriate use of sanctions in the Access to Justice Report 2006. Following the introduction of the Civil Procedure Rules 1998, we considered whether Woolf was successful and discussed the basis for Lord Jackson’s Reforms in April 2013.

While reviewing Jackson, we contemplated the implementation lectures and the differences between the new and old Rule 3.9 before going on to break down the tests in Mitchell and Denton. In the absence of subsequent application of the Denton test having been reported, we discussed what my thoughts were for the future.

The audience was particularly broad – those in attendance included individuals all the way up to Solicitors and Heads of in-house Litigation Departments for sophisticated and household name organisations. Those who intended had clearly identified the significance of the changes to the CPR and the subsequent case law for any individual or organisation that uses the Civil Court system in England and Wales.

The fact that there was a cross-section is important. Lawyers are a self-opinionated bunch! Frankly, we would not be much use arguing a case on behalf of our client if we did not consider that our opinion was the most important!

Our first poll indicated that almost 90% of respondents had never made an Application under CPR, r. 3.9 prior to April 2013 and Jackson. There are, sadly, very few Litigation lawyers who never had any cause to consider CPR, r. 3.9 and, on that basis, this is a good indication that the majority of respondents are non-lawyers. Our second poll garnered an almost identical response.

Having traversed the history of sanctions since the early 1990s and having discussed the lack of clarity and the culture of deep rooted misunderstanding of the Court of Appeal’s test in Mitchell and their attempt to redress the balance in Denton, I was keen to establish the listeners’ opinion: Should the Civil Procedure Rules Committee go back to the drawing board?

The purpose of the Civil Procedure Rules 1998 was, among others, to open the Court system to litigants in person, to reduce costs and complexity and allow the individual to conduct their own case without a lawyer. CPR, r. 3.9 appeared, on its face, to be a clearly understandable rule. Mitchell and Denton appeared to expand the rule and politicise it. Could a litigant in person understand that, in order to successfully argue a case, they must not just consider the rule, but also the Judgments in two previous cases that may appear to bear little resemblance to their own? I was interested to seek the views of the listeners – should the rule be redrafted to include the tests?

I asked “Do you think that the Civil Procedure Rules Committee would be better off scrapping the current CPR,r.3.9 and starting again?” and was interested to see that over 79% of those who expressed an opinion considered that redrafting would be preferable to the current state of affairs.

Is it all that surprising? Perhaps. I’ll let them know…

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