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Mitchell Re-Imagined – Denton & Ors v TH White Ltd & Anor

Dominic Woodhouse,       Cost Drafting Manager

Dominic Woodhouse     Cost Drafting Manager

Denton & Ors – v – TH White Ltd & Anor [2014] EWCA Civ 906

The court of Appeal has now given its judgement in Denton & Ors – v – TH White Ltd & Anor [2014] EWCA Civ 906 and it has been well worth the wait. Whilst at pains not to criticise the decision in Mitchell, the Court of Appeal has given clear guidance to lead judges and practitioners away from the excessively rigid application of rules which it has generally fostered.

Language was identified in playing a substantial part in the draconian application of Mitchell in two key respects. Firstly, too much emphasis has previously been given to determining whether a breach was itself ‘trivial’ so as to enable an application for relief to succeed; instead, what is required is to consider whether the breach is ‘serious’ or ‘significant’. Secondly, the status of the factors identified in CPR 3.9(1)(a) and (b) were not of ‘paramount’ importance; they are of ‘particular’ importance and should be given ‘particular’ weight.

In this context and with the express exhortation that it should no longer be necessary to refer to the previous authorities on the subject of relief, the Court set out three stages to be applied to consideration of an application for relief from sanction.

Courts should start by assessing the seriousness or significance of the breach, which should not involve a consideration of other unrelated failures that may have occurred in the past. There then follows a consideration of why the failure or default occurred, before finally considering all the circumstances of the case, so as to enable the court to deal justly with the application.

The first stage engages the test of whether the breach is ‘serious’ or ‘significant’, as opposed to the much more restrictive concept of ‘triviality’. The second stage will involve consideration of whether there is ‘good reason’ for the breach, but significantly emphasising that the lack of any good reason for the breach does not render all other considerations void. The Court must instead consider the third stage of all the circumstances, in which the need for litigation to be conducted efficiently and at proportionate cost, and enforcing compliance with rules, practice directions and orders are of only ‘particular’ weight and significance, rather than paramount and overarching importance.

In practice, if the breach is not serious or significant, relief will usually be granted. The more serious or significant the breach, the less likely it is that relief will be granted unless there is a good reason for it, but where there is a good reason for a serious or significant breach, relief is likely to be granted.

No longer should the key consideration be whether the failure itself is of so little importance it is almost pointless to require it to be done in the manner prescribed, or whether circumstances conspired to make compliance all but impossible. What is required in future is a more nuanced approach to allow just and proportionate decisions. The collective sigh of relief is almost audible.