*/
The explosion of satellite litigation following the decision in Mitchell v News Group Newspapers has led to the Court of Appeal’s judgment this July in Denton, Decadent and Utilise – an attempt to clear up misunderstandings, offer further guidance and implore the legal profession to promote “access to justice at proportionate cost” and not to take advantage of mistakes made by opposing parties “in the hope that relief from sanctions will be denied and that they will obtain... litigation advantage”.
“The court will be more ready in the future to penalise opportunism,” the Master of the Rolls and Lord Justice Vos warned. At stake was the interpretation of the “relief from sanctions” provisions in Civil Procedure Rule 3.9, which the Rules committee had drafted while rejecting the wording proposed by Lord Justice Jackson, whose comprehensive review of civil procedure led to changes in the Rules and who provided a separate judgment in this appeal.
The main judgment set out three stages for judges to follow. First, they must identify whether the breach of any rule practice direction, or court order was “serious or significant” – using “trivial” would only lead to semantic disputes. Second, they must consider why the failure or default occurred. “It would be inappropriate to produce an encyclopaedia of good and bad reasons.” Third, the judge must consider all circumstances of the case. There is no room for “the traditional approach of giving pre-eminence to the need to decide the claim on the merits”.
Lord Justice Jackson took a different view to the third stage. He felt that the factors in the first two stages were simply amongst matters to be considered, or as the Bar Council submission put it, “have a seat at the table, not the top seats at the table”. Ultimately what Rule 3.9 requires is that the court should “deal justly with the application”. He detailed the many hidden costs of an adjourned trial. “What litigants need is finality, not procrastination.” He stated that he was not, though, criticising the actual decision in Mitchellwhich was within the permissible range of case management discretion by the Master.
The main judgment set out three stages for judges to follow. First, they must identify whether the breach of any rule practice direction, or court order was “serious or significant” – using “trivial” would only lead to semantic disputes. Second, they must consider why the failure or default occurred. “It would be inappropriate to produce an encyclopaedia of good and bad reasons.” Third, the judge must consider all circumstances of the case. There is no room for “the traditional approach of giving pre-eminence to the need to decide the claim on the merits”.
Lord Justice Jackson took a different view to the third stage. He felt that the factors in the first two stages were simply amongst matters to be considered, or as the Bar Council submission put it, “have a seat at the table, not the top seats at the table”. Ultimately what Rule 3.9 requires is that the court should “deal justly with the application”. He detailed the many hidden costs of an adjourned trial. “What litigants need is finality, not procrastination.” He stated that he was not, though, criticising the actual decision in Mitchellwhich was within the permissible range of case management discretion by the Master.
The explosion of satellite litigation following the decision in Mitchell v News Group Newspapers has led to the Court of Appeal’s judgment this July in Denton, Decadent and Utilise – an attempt to clear up misunderstandings, offer further guidance and implore the legal profession to promote “access to justice at proportionate cost” and not to take advantage of mistakes made by opposing parties “in the hope that relief from sanctions will be denied and that they will obtain... litigation advantage”.
“The court will be more ready in the future to penalise opportunism,” the Master of the Rolls and Lord Justice Vos warned. At stake was the interpretation of the “relief from sanctions” provisions in Civil Procedure Rule 3.9, which the Rules committee had drafted while rejecting the wording proposed by Lord Justice Jackson, whose comprehensive review of civil procedure led to changes in the Rules and who provided a separate judgment in this appeal.
The Bar Council faces both opportunities and challenges on our key areas this year
Girls Human Rights Festival 2025: a global gathering for change
Exclusive Q&A with Henry Dannell
Casey Randall of AlphaBiolabs discusses the benefits of Non-invasive Prenatal Paternity testing for the timely resolution of family disputes
By Louise Crush of Westgate Wealth Management
Have you considered being a barrister in the British Army? Here’s an insight into a career in Army Legal Services
Patrick Green KC talks about the landmark Post Office Group litigation and his driving principles for life and practice. Interview by Anthony Inglese CB
Sir Nicholas Mostyn, former High Court judge, on starting a hit podcast with fellow ‘Parkies’ after the shock of his diagnosis
‘Hard work and commitment can open doors. I believe that I am proof of that,’ says Senior Treasury Counsel Louise Oakley. She tells Anthony Inglese CB about her journey from Wolverhampton to the Old Bailey
What's it like being a legal trainee at the Crown Prosecution Service? Amy describes what drew her to the role, the skills required and a typical day in the life
Barbara Mills KC wants to raise the profile of the family Bar. She also wants to improve wellbeing and enhance equality, diversity and inclusion in the profession. She talks to Joshua Rozenberg KC (hon) about her plans for the year ahead
