Mitchell, Disciplined Litigation and Piers

December 18, 2013

The Court of Appeal’s enthusiasm for iron discipline with regard to litigation deadlines, as exemplified in {i}Mitchell v News Group Newspapers Limited{/i} [2013] EWCA Civ 1537 and confirmed in {i}Durrant v Avon & Somerset Constabulary{/i} [2013] EWCA Civ 1624, worries me.

I am sure that {the report of the Taiwanese tourist walking off the pier in Melbourne while checking her Facebook status:} will be used as a metaphor for every manner of oversight so, before its value disintegrates completely, let me apply it here. The danger is that the judiciary become so focused on the dangers inherent in relief from the sanctions that apply to lawyers who fail to litigate promptly and properly that they walk off the justice pier.

The irony is that, in the adversarial process that is our criminal justice system, the recent devotion to the overall objective has led to a spate of decisions condemning any opportunism on the part of defence lawyers taking advantage of CPS errors.

For what it’s worth, Mitchell seems very harsh – a real spare the rod case – while Durrant seems fair enough. But ‘harsh but fair’ is a very tricky act to pull off. Usually it is a phrase used to cover injustice.