Letting the punishment fit the crime as Mitchell gives way to Denton

What was over in moments, added a word to the law’s dictionary, led to countless spin-off cases and applications, cost millions in legal fees, ended reputations and, having left its mark, disappeared from the scene?

There is are curious parallels between “Plebgate” and the judgment called “Mitchell”, either of which could be described in this way. The original incident, the only event with a “-gate” suffix which actually involved a gate, was over in seconds; Andrew Mitchell lost his Ministerial job, one policeman went to prison, others were disciplined and a rotten branch of policing was given a long-overdue shaking; at least two libel cases ensued and the whole consequent series of investigations and civil and criminal claims will keep many lawyers in claret for long after we have forgotten both Plebgate and Andrew Mitchell.

It took Lord Dyson a few minutes rather than seconds to deliver the Court of Appeal judgment known as “Mitchell”, and its consequences have been similar to Plebgate. Millions of pounds have been spent since, in complying with the regime which the judgment spawned, in arguments and applications resulting from it, and in bringing claims against lawyers whose every minor default became a cause of dispute. It is suggested that “Mitchell” was the last straw for some solicitors, already hard-pressed to break even. Court lists were flooded with Mitchell-related applications. A spirt of co-operation, or at least of give-and-take, between solicitors, which had always oiled the procedural wheels, disappeared in a new climate in which lawyers felt it their duty to take every point in case they could “Mitchell” their opponents, and cases which could have proceeded toward trial were delayed as the “Mitchell” point was contested; one involved a delay of 46 minutes in serving a list of documents.

Lord Justice Jackson watched helplessly as his ambition to impose discipline in order to contain costs disappeared into the Mitchell inferno in which costs were racked up and timetables delayed for artificial issues. Worse, many blamed him for a decision which was not his and which was based on a version of Rule 3.9 which the Rule Committee had tampered with (there are some very good people on the Rule Committee; and there are some others).

Lord Dyson floated serenely above it all. Few argued with the need for discipline, and the kind of firms who used to instruct him, in the kind of cases in which his great talents were required, were well able to cope; many of them perhaps appreciated having a stick with which to beat less well-resourced firms, and any additional costs were easily absorbed in their big cases. In a curious phrase, Dyson said that he was “fairly unrepentant” about Mitchell.

Well, Mitchell has gone, at least in its original form. All those cases which filled the law reports, the legal press and the pockets of lawyers, had their last outing in the judgment known as Denton or “Mitchell 2”. They will disappear from sight – a bit like the career of Andrew Mitchell MP. There will be a legacy, and it will not be all bad, whatever I may think of the Mitchell decision itself. It will perhaps be like some episode in war, where lives and equipment are lost in storming an objective which could have been achieved by a less wasteful approach.

You can get the flavour of my view from a Q&A which Recommind published on its blog last week. You may get the sense from that that I was no great enthusiast for what the Court of Appeal did in Mitchell. If I have not exactly rushed to report or comment on the Court of Appeal’s judgment in Denton it is partly because there was no shortage of worthy articles on the subject in the days which followed it, and partly because the result does not really have implications peculiar for disclosure distinct from those applicable to case management and case preparation generally.

I made much of Mitchell in talking and writing about eDisclosure; it raised the stakes significantly for those seeking to comply with the eDisclosure provisions in the rules, as well, of course, for those who didn’t even know they were there (don’t laugh – there are plenty of solicitors whose first glimpse of Rule 31.5 CPR comes when the Judge or Master shows it to them in the White Book. When I was young the expression “to throw the book at you” had real practical meaning with some QB Masters; now the expression is used purely metaphorically). Denton has not weakened those duties, just restored some sensible discretion when they are breached and made it more likely that the punishment will fit the crime.

If you want a quick summary of my view to save you reading to the end it runs something like this:

The disclosure passages in Practice Direction 31B and in the new Rule 31.5 impose obligations on parties which are broadly reasonable provided that they are managed properly, making use of the judicial discretion to do what is sensible. If you RTFR (Read the Flippin’ Rules) then that would be a good start; if you are going to fall short in your obligations, than let that be because circumstances were against you rather than because you did not know what the obligations are.

Jackson’s wish to improve compliance for the benefit of all was a good thing; the Court of Appeal chose the wrong case in Mitchell and expressed themselves clumsily – a word I choose with diffidence of a senior judge who commands great respect on all other grounds. It is unsurprising that Mitchell was interpreted by so many judges and lawyers as removing their discretion. It is unsurprising that Mitchell killed cooperation and replaced it with an expensive and aggressive use of tactical play. It was naive of the Court of Appeal to expect anything different, and rather unbecoming that they are so unapologetic about it.

The consequences of Mitchell – all those thousands of hours and millions of pounds wasted, all the unnecessary procedural pressure at the expense of case progress and all those professional negligence claims – may yet have a positive legacy in focusing attention on the importance of early preparation in anticipation of deadlines. It was a high price to pay, however, for something which could have been achieved at less cost with a little thought. Whether or not you accept the idea that parties should be aware of their disclosure obligations, and even if you are against judicial discipline, you cannot argue with the conclusion, expressed by Lord Justice Jackson at the end of the recent judgment, that orders must be reasonable ones, capable of being met; to decide what is reasonable the judge must have the base information – of scope, of potential value, of alternative approaches and of costs – with which to to inform a proportionate course.

It is worth adding that all of those components – scope, method, cost etc – would make sense in any jurisdiction requiring discovery. You can test this, if you like, by inverting the requirement, and saying that there should be no obligation at all on parties to assess the implications of what is often the biggest head of cost, and that it makes perfect sense for a judge to try and give directions without knowing about any of it. Does that sound better?

What is missing between the two extreme positions – Rule 31.5 readiness versus laissez faire – is that key factor, judicial discretion to do what is right. At one point during the Denton hearing, the Master of the Rolls expressed surprise that any judge had treated Mitchell as removing that discretion. If there was a moment when one felt that Dyson had lost touch with the real world, this was it.

One of the reasons for not treating you to my report and analysis of the Court of Appeal’s judgment nor to pointers to all the other articles about it, is that barrister Gordon Exall did it extremely well and with his usual promptness on his Civil Litigation Brief. You will find a 70 point breakdown of the judgment here and a copious list of articles about it – Gordon Exall drew a line at the first 50 which came his way. You see why I was in no hurry to add to the library.

Of those articles, I would draw your attention to a handful:

Professor Dominic Regan gives us a “Guided Tour” with key references in the fewest possible words in Denton – the key references

Shaman Kapoor of Temple Garden Chambers gives us a carefully broken-down summary of the points to be considered by the court (and therefore by both parties) in his article To Mitchell or not to Mitchell? Note in particular the warning to respondents (generally, those whose reaction to a default makes an application necessary at all) about the possible penalties for the “opportunism” criticised in Denton (although, as I have suggested above, a reaction wholly to be expected after Mitchell).

Rachel Rothwell in the Law Society Gazette pursues the same point with an article headed Mitchell: end to opportunism whose main message lies in its subtitle – Is it now safe for lawyers to behave decently to one another again? See in particular what she says about Lord Justice Jackson, summarised in this paragraph:

One can only imagine the judge’s frustration as he has watched his detailed and carefully-balanced package of reforms become famous – or rather, infamous – for an over-zealous approach to Rule 3.9 that he did not agree with”.

One person’s “opportunism” is another’s zealous advocacy on behalf of his or her client. This is well-trodden ground in the US, where the perceived duty to fight every corner on the client’s behalf has long overtaken any sensible approach to cooperation. In this context, I refer, as I always do, to a paper called Cooperation – What Is It and Why Do It?  by US Magistrate Judge David Waxse which works its way from a logical explanation as to the benefits of cooperation, via a demolition of the “zealous advocacy” point and on to a firm basis in the rules for an express duty of cooperation. We have that same duty and, in general, it worked rather well until Mitchell destroyed it. It would be nice to have seen an apology, or at least some remorse, from the Court of Appeal as it withdrew from that most damaging result of Mitchell.

We will, of course, get no apology – that is not how appeal courts work and I would in truth be rather taken aback if Lord Dyson were to say sorry. The case for an apology is made nevertheless by John Hyde of the Law Society Gazette in his article Where’s the apology for Mitchell chaos?

A more nuanced approach to sanctions

Denton may be seen as a climb-down in some respects (“clarification” is the technical term) but it is not a step back from Lord Justice Jackson’s aim to encourage compliance with rules, orders and practice directions. Mitchell set out to emphasise it, but it did so with a steam-hammer where a rapier would have been more appropriate. Denton has restored Jackson’s intention that all the circumstances of the case should be taken into account; it restores judicial discretion to do what is right within the rules to meet the overriding objective; it over-emphasises, perhaps, the risks attaching to failed challenges, with words which may deter proper attempts to bring a delinquent party into line; it stresses the importance of getting court orders right in the first place; it gives us back the idea that sanctions must be more nuanced and more appropriate both for the offence itself and for its impact on the case and on the other party.

The punishment, in other words, should fit the crime. The Mikado is the exemplar of a nuanced approach to punishment. The fate of a delinquent party has resembled this wrong-doer:

The billiard sharp whom anyone catches,
His doom’s extremely hard —
He’s made to dwell
In a dungeon cell
On a spot that’s always barred.
And there he plays extravagant matches
In fitless finger-stalls,
On a cloth untrue,
With a twisted cue
And elliptical billiard balls.

Civil litigation has come to consist of “extravagant matches” which the hapless lawyer has had to play with disadvantages of uncertainty induced by parallels to the defective equipment listed by the Mikado. Perhaps Mitchell has been the “twisted cue” making it impossible to predict which way the 3.9 application will go; the “elliptical billiard ball” is the uncertainty as to whether today’s judge (unlike yesterday’s or tomorrow’s) will show any interest in your budgets; the “spot that’s always barred” is the county court which neither answers the phone nor replies to correspondence. The parallels are not exact, but we are very far from the certainly which Jackson aimed to provide, and through no fault of Jackson’s.

The Mikado’s intention – his overriding objective if you like – was expressed in the chorus:

My object all sublime
I shall achieve in time
To let the punishment fit the crime,
The punishment fit the crime;
And make each pris’ner pent
Unwillingly represent
A source of innocent merriment,
Of innocent merriment!

We don’t expect innocent merriment in our civil courts. A more even response and a punishment to fit the crime, however, would be a good thing.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Jackson Reforms, Lord Justice Jackson. Bookmark the permalink.

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