Post-Mitchell life: not as strict as we thought?

The recent judgment in (1) Mark Forstater (2) Mark Forstater Productions Ltd v (1) Python (Monty Pictures Ltd (2) Freeway Cam (UK) Ltd [2013] EWHC 3759 shows there is perhaps a silver lining to the looming grey cloud that is the Mitchell judgment.

As we are all aware, Mitchell laid down incredibly strict rules for compliance, with harsh penalties for those that fall foul of the rules. However, the judge in this case seemed to take a common sense approach to what he deemed to be a ‘trivial’ breach.

The brief facts of the case are that the second Claimant failed to file a Notice of Funding, and so had to apply for relief from sanctions in respect of this. The Court noted that the second Claimant had no good reason for not filing a Notice of Funding, and that they could not rely on the fact that the first Claimant had filed one. In the post-Mitchell world, the second Claimant feared the worst, with the guidance on how to approach relief from sanctions under CPR 3.9 stating relief can be granted for ‘trivial’ breaches where the application for relief is made promptly; if the breach is not of a trivial nature, the applicant must have ‘good reason’ for doing so.

Surprisingly, the Court instead took the view that as the second Claimant had advised the Defendants in writing on the 19th July 2012 that a Conditional Fee Agreement was in place, and that the Defendants themselves admitted that they would not have acted differently, the Court allowed the second Claimant to claim a success fee from the 19th July 2012 onwards, but not before. The Court was therefore able to grant relief from sanctions in a compromising manner, allowing them to save face by adhering to strict rules, without impeding justice.

This common sense approach to the second Claimant’s informal notification of the funding arrangement, whilst certainly is not a model to be followed, perhaps shows the Courts are beginning to relax their approach from incredibly strict to one that adheres to their own principles of reasonableness and proportionality. With case law in this area coming thick and fast, we will of course be monitoring the situation closely.