Cases should be resolved justly, not merely by default


The Court of Appeal has recently given a landmark decision which has provided detailed guidance relating to relief from sanctions under section CPR 3.9, which swings the pendulum from the original guidance given in the famous case of Mitchell V. NGN.

The facts, decision and rationale in Mitchell, formed the guidance upon when relief from sanctions would and would not be granted. In Mitchell, the Master dealing with the case found that the Claimant’s non-compliance with the Civil Procedure Rules caused substantial extra work and costs to be incurred by the Defendant and disrupted the work of the Court. As a result, the relief from sanction was refused and the Court of Appeal subsequently upheld that decision. In the Court of Appeal’s Judgment, guidance was given as to how the “new” approach should be applied in practice and said that:

“It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided than an application is made promptly.”

Therefore it seemed that following Mitchell, where a failure to comply with a Court order, rule or direction can be said to be more than a trivial breach and there is no good reason for the failure to comply with the same, then a party seeking relief from the sanction is unlikely to be granted relief.

However, the Court has now provided further guidance in dealing with three appeal cases of Denton, Decadent & Utilise. The Court says that Mitchell has been misunderstood and misapplied in some Courts, which has led to disproportionate decisions being made.

In Judgement, the Court provided new guidance and said that relief will usually be given for breaches that were neither serious nor significant, with the word “trivial” no longer being used. Consideration of whether there was a good reason for the breach should be given, and all of the circumstances of the case should be taken into account to allow the Court to deal with the application justly. The Court also emphasised the need for co-operation from the party not in breach and said that it would be wholly inappropriate for that party to capitalise on the mistakes of the party in breach in the hope of a ‘wind-fall strike out’.

In allowing three appeals in which clear and uncontested breaches of rules, practice directions and court orders occurred, it is now apparent that the Court was perhaps a little over-zealous in the Mitchell case, and that every effort should be made to ensure a case is resolved justly, and not merely by way of fluke or default.

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