Personal Injury - Is the Mitchell judgment being diluted?

The hard line approach taken in Andrew Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 ("Mitchell") has been tempered recently in the case of Groarke v Cecil Fontaine QBD (Eady J) 22.05.14.

Although the Courts show little sign of departing from the hard line approach adopted in Mitchell when it comes to non-compliance, Jackson LJ recently stated that "it was no part of my recommendations that parties should refrain from agreeing reasonable extensions of time, which neither imperil hearing dates nor otherwise disrupt the proceedings…. Nor was it any part of my recommendations that the court should refuse to grant reasonable extensions of time in those circumstances".

In the case of Groarke the Defendant sought to amend his Defence and to plead contributory negligence some 7 months after witness statements were exchanged. The High Court overturned the first Court's decision refusing permission

Eady J stated that the Court was able to be flexible given that an amended Defence wasted no Court resources and inconvenienced no other Court users. He went on to say that the interests of fairness and justice do not need to be "compromised merely for the sake of discipline or the marking of disapproval". He described he District Judge's decision to refuse permission as one done whilst doing his best to apply relevant principles seen in post Jackson cases, but "in examining the trees, he ultimately failed to see the wood".

Eady J added: "I believe that justice and fairness required that the amendment should have been allowed so that the ‘real dispute' between the parties could be adjudicated upon".

This decision may be hailed as a ‘retreat' from 'Mitchell' however caution must be applied, all practitioners should stay vigilant and stick to deadlines at all cost.

Since this case was reported it has been announced that the Court of Appeal has listed three appeals which raise arguments relating to the principles established in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 to be heard together over two days, on 16 and 17 June 2014.

In the meantime, time limits should be treated with extreme seriousness and sufficient resources given to a case to ensure that you can give your legal advisers the information they need to ensure there is compliance, or to enable them to make an early application for relief before the deadline.

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