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Costly errors made by first instance judge “misapplying and misunderstanding” Mitchell leads to the Court of Appeal overturning judge’s decision.


The Jackson reforms in how courts should impose sanctions in 2013 gave clear guidance to the courts in trying to manage costs.

 In the landmark case of Mitchell MP v News Group Newspapers [2013] EWCA Civ 1537 (“Mitchell case”), the Court of Appeal had given guidance on the revised CPR 3.9 (relief from sanctions) following the Jackson Reforms. It was thought that courts had become too tolerant of delays and of non-compliance of orders. The emphasis therefore would be for the need for litigation to be conducted efficiently and at a proportionate cost and the need to enforce compliance of the rules.

“The question at the heart of the appeal is: how strictly should the courts now enforce compliance with rules, practice directions and court orders?” (Lord Dyson MR)

It was held that a sanction will usually stand unless

(a)    the non-compliance is trivial ( e.g. failure to complete a small section of a form)  or

(b)   there is a good reason for  the non-compliance.

The Court hoped it had sent a clear message that “from now on relief from sanctions should be granted more sparingly than previously.”

The concept of justice in the overriding objective did not refer exclusively to justice inter partes but rather to the needs and interests of all court users.


In the recent case of McTear and Williams v Engelhard and Others [2016] EWCA Civ87 , according to the Court of Appeal, the first instance judge applied the Mitchell case “wrongly and unjustly”. It has caused the original judgment to be set aside and for a new trial to be ordered.

So what had the judge erroneously applied for the Court of Appeal to overturn the judgment?

At the start of the trial, the judge had refused

–          to allow any of their witness statements (served 50 minutes late) to be admitted at trial and for the witnesses to be called to give oral evidence;

–          admission of documents discovered two weeks before the trial which were relied on by the defendants and had been given to the claimants through discovery some weeks before;

–          permission for the defendants to amend their defence in order to plead set off  of mutual debts.

The Court of Appeal was critical of the judge’s errors and approach taken. This is not the first time that the principles in the Mitchell case had been seemingly misapplied and misunderstood by the first instance court. The same happened before leading to decisions that were “manifestly unjust and disproportionate” (Denton v TH White Ltd) and were ultimately overturned by the Court of Appeal.