HHJ Oliver-Jones QC, sitting as High Court Judge in the Queen’s Bench Division, has recently declined to follow the ruling in Mitchell when addressing the issue of relief from sanction (Adlington and 133 others v ELS International Lawyers LLP, unreported 12 December 2013, Claim No 2BM90107).
Relief was granted in this case regarding a failure to comply with the requirements of an Unless Order, relating to late service of individual Particulars of Claim.
Paragraph 34 of the Judgment if of particular interest:
“it might be argued that I have not had sufficient or proper regard to (a) the “wide range of interests” identified by the Master of the Rolls in paragraph 51 of the judgment in Mitchell……. and/or (b) “the new more robust approach” referred to in paragraph 46 and outlined in the paragraphs which preceded it. I make it clear that I have not ignored these important principles nor focused exclusively, or even primarily, on doing justice between the parties in this individual case, although clearly I have had to consider the latter in the context of the former. I bear in mind that in reaching the conclusions he did in his Final Report, Sir Rupert Jackson rejected what he described as “the extreme course which was canvassed as one possibility in [the Preliminary Report] paragraph 43.4.21 or any approach of that nature” (my emphasis added), namely that non-compliance would no longer be tolerated save in “exceptional circumstances”. Thus the circumstances do not have to be exceptional to attract the granting of relief, but a decision as to whether or not relief should be granted does involve the “change of balance” implicit in the new wording of CPR 3.9. I have undertaken that balancing exercise and given great weight to the two factors identified expressly in the rule. However, bearing in mind that the relationship between justice and procedure has not changed so as to transform rules and rule compliance into trip wires, and “nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice”, I am satisfied that relief should be granted in all the circumstances of this case”.
The Judge’s comments are conscientiously put for fairly obvious reasons given they appear to conclude, without explicitly saying so, that the decision in Mitchell was not a correct one.
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