Move over Mitchell....!
So, Mitchell was 'misunderstood' and needed 'clarifying.' If that was the case, surely the 'triviality' and 'good reason' test would have remained? Yet the 'Mitchell test' is no longer the correct test when determining whether a party should be entitled to relief from sanctions for breaching a rule, PD or Court Order.
The Court of Appeal in Denton -v- TH White Ltd & De Laval Ltd, Decadent Vapours Ltd -v- Bevan, Salter & Celtic Vapours Ltd, Utilise TDS Ltd -v- Davies, Bolton Community College Corp & Watertrain Ltd  EWCA Civ 906 have applied a new 3 stage test; (1) is the breach significant or serious? If 'No,' then relief should be granted and if 'Yes,' then move to stages 2 and 3. (2) why did the breach occur? (3) what do all the circumstances tell us including consideration of the factors at CPR.r.3.9(1)(a) and (b). Taking all that into account, a Court should then be in a position to deal with an application justly.
Jackson LJ dissented to a degree from the Master of the Rolls and a Vos LJ. The latter two stated that, when approaching stage 3, all the circumstances should be taken into account but the factors at CPR.r.3.9(1)(a) (for litigation to be conducted efficiently and at proportionate cost) and CPR.r.3.9(1)(b) (to enforce compliance with rules, practice directions and orders) should be given greater weight. Jackson LJ disagreed finding that whilst those two factors must be considered in every case, the rule did not require them to be given greater weight over other, relevant factors.
Also, the Court of Appeal stated that any party who unreasonably opposed an application for relief can expect to be penalised in costs. Opportunism must be discouraged and contested applications for relief should be exceptional. So...pick your battles.
So there we have it, move over Mitchell. What a relief it's all now sorted !
Nick McDonnell - Costs Lawyer/Senior Associate & Legal Services Manager