The CA has given its first decision on the correct approach to the new version of CPR 3.9 in Andrew Mitchell MP v News Group Newspapers Ltd  EWCA Civ 1537.
Rule 3.9 sets out the test on an application for relief from sanctions. The new rule, applicable to applications made after 1 April 2013, dispenses with the previous nine factors for consideration and replaces them with two: (1) the need for litigation to be conducted efficiently and at proportionate cost and (2) the need to enforce compliance with rules, practice directions and orders. As with the old rule 3.9, the court must also consider “all the circumstances”.
The CA held that the starting point will usually be to consider the nature of the non-compliance. If it can be regarded as trivial, relief should usually be given provided that the application is made promptly. A trivial breach may be one of form rather than substance, or where a deadline is narrowly missed but otherwise fully complied with.
If the non-compliance is not trivial, the court will consider the reason for it. If there is a good reason, relief is likely to be given. Good reasons are likely to result from circumstances outside a party’s control – such as a debilitating illness or being involved in an accident. Merely overlooking a deadline or being overworked is unlikely to constitute a good reason. “Well-intentioned incompetence” should not usually attract relief.
The new 3.9 reflects a deliberate shift of emphasis under which its two new considerations should be regarded as of paramount importance. Obviously, this more robust approach will result in relief being granted less often.
The judgment makes for remarkable reading. The decision is astonishingly harsh on the facts. Both parties filed costs budgets for over £500,000. Mr Mitchell’s solicitors were overworked and filed his 6 days late. Consequently, his budget was restricted to court fees alone and his application for relief from sanctions was refused. The CA refused his appeal, concluding that the breach was not trivial and was without good reason. As a result, even if Mr Mitchell wins his claim he is unlikely to recover any more than a token of his expected half a million pound costs.
Winston Jacob / 1st Dec 2013
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