Partner Jim Knight asks what might the outcome have been had Mitchell
been appealed to the Supreme Court?
 

Mitchell was no doubt a controversial decision but for whatever reason it was not appealed to the Supreme Court. Had it been, the final outcome may well have been far less draconian.

As recently as 3 March 2014, the Judicial Committee of the Privy Council heard the appeal in Real Time Systems Ltd -v- Renraw & Others [2014] UKPC 6 which concerned concerning a decision made by the Court of Appeal of Trinidad & Tobago which overturned a Judge's strike out order.

The Privy Council upheld the decision indicating that the correct route would have been to apply for an unless order rather than an order to strike out the claim. The significance of this Privy Council decision is that it was made by three Supreme Court Judges (Lords Mance, Clarke and Sumption) who found that there was no reason why the Court, faced with an application to strike out, should not conclude that the justice of the particular case "militates against this nuclear option", and that the appropriate course instead would be to order a Claimant to supply further details, or serve an amended statement of case including such details, within a further specified period.

When delivering this judgment Lord Mance commented that "...it would again be very strange if, by choosing only to apply for the more radical than the more moderate remedy, a Defendant could force the Court's hand, and deprive it of the option to arrive at a more proportionate solution." Words of wisdom indeed but cold comfort perhaps for Mr Mitchell and his legal representatives!
 

Precedent H to be revised in 69^th Update to CPR

The form of the statement of truth verifying a costs budget is to be revised in the latest update to the Civil Procedure Rules.

It is important to note that the revision to the statement of truth is to come into force on 22 April 2014 and not 6 April 2014 as previously stated.

The new statement of truth that comes into force of 22 April 2014 states “This budget is a fair and accurate statement of incurred and estimated costs which it would be reasonable and proportionate for my client to incur in this litigation.”

The current statement of truth (Paragraph 2.2A of Practice Direction 22) states “The costs stated to have been incurred do not exceed the costs which my client is liable to pay in respect of such work. The future costs stated in this budget are a proper estimate of the reasonable and proportionate costs which my client will incur in this litigation.”

Please make sure that the new statement of truth is utilised for all costs budgets prepared and/or served post 22 April 2014.

Legal Costs Update by Partner Gary Knight
 

The ripples caused by the Mitchell decision continue to spread out across the 2014 legal landscape. The following are just some of the highlights from a busy February and March.

M A Lloyd & Sons Ltd (T/A KPM Marine) –v- PPC International Ltd (T/A Professional Powercraft)  (2014) – QBD – Turner J -20/01/14 [2014] EWHC 41 (QB)
In this matter the defendant applied for an extension of time for the provision of a witness statement.
In the proceedings an order had been made for the claimant to provide a statement together with a skeleton argument by 25 October 2013 on matters of law in support of the submission that the defendant was “legally extinct” with no entitlement to litigate with the defendant to provide a statement in reply by December 2013. Absent the claimant’s statement or skeleton the defendant issued its application but thereafter agreed to the claimant’s proposed revised timetable. The claimant did not attend the defendant’s application hearing but produced a draft statement setting out difficulties encountered obtaining documents.

At the hearing Turner J found that it was (i) abundantly clear that the claimant should have advised the court of its alleged inability to provide evidence before the order had been made,(ii) in the event that the claimant became aware that it was in difficulty after the order had been made the claimant ought to have applied for an extension of time before the deadline for compliance had passed, (iii) the claimant ought to have applied promptly for specific disclosure rather than simply providing a “wish list” of documents in the body of a statement.

The judge stated that as the matter stood the claimant was precluded from calling at trial any intended witness in respect of the issues that had been identified in the order unless the claimant could persuade the court to grant relief from sanction. The judge referring to Mitchell was entirely satisfied that there was no prospects of relief being granted further referencing the robust approach to late service of statements in Durran  and in Karbhari.

The fact that the defendant had agreed to the claimant’s proposed revised timetable did not assist the claimant, the defendant’s response to the claimant’s default being described by the judge as “unduly timid” and the court declined to endorse the revised time table stating the proper approach was to make an order debarring the claimant from raising any issue at trial relating either to the existence of the Defendant or its entitlement to litigate in the UK. The claimant’s decision not to attend had, in the view of the judge, resulted in a disproportionate amount of court time being taken up, the judge cautioned that a party could not simply assume it could absent itself confident in the assumption that r23.11 afforded a comfortable fallback position if the court’s order was not to its liking.

Click here for Gary's full update and further significant cases.