Lord Dyson issues Guidance on Mitchell

Liam O’Shea, Director and Solicitor in Astle Paterson’s Dispute Resolution department, comments on the news that Lord Dyson has recently upheld 3 appeals relating to relief for non-compliance with Court orders and directions.

Lord Dyson, the Master of the Rolls, insisted the guidance in the leading case on non-compliance, ‘Mitchell’ could not necessarily be applied in all decisions made in applications from relief from sanctions due to non-compliance with Court orders and directions.

Liam notes that “The Master of the Rolls, sitting with Lord Justice Jackson – who brought in the recent changes to the Court rules – set out that the Court should first look at the ‘seriousness and significance’ of the non-compliance, secondly consider why the failure occurred and thirdly look at the overall circumstances of the case.

Dyson ruled that if “there is a non-trivial (now serious or significant) breach and … there is no good reason for the breach, the application for relief from sanctions will automatically fail. That is not so and is not what the court said in Mitchell.”

Whilst Lord Dyson stated that the decision in Mitchell had been ‘substantially sound’ the ruling had been ‘misunderstood and is being misapplied by some courts.’”

Following the guidance issued by Lord Dyson, the chief executive of the Law Society, Desmond Hudson, said of the Judgment “The court’s previous decision in Mitchell and the way it was being applied by the lower courts had resulted in disproportionate penalties and a breakdown in co-operation between parties to litigation, clogging up the system and introducing huge uncertainty into the whole process of civil litigation.”

However, as Liam confirms “Of potential note however is Lord Justice Jackson’s difference of opinion with Lord Dyson over the application of the three stage test set by Lord Dyson – whilst Lord Justice Jackson agreed with stage 1 and 2, he took a different view with stage 3; the rules “requires the court to consider all the circumstances of the case as well as factor (a) and factor (b). The rule does not require that factor (a) or factor (b) be given greater weight than other considerations. What the rule requires is that the two factors be specifically considered in every case. The weight to be attached to those two factors is a matter for the court having regard to all the circumstances. The word “including” in rule 3.9 means that factors (a) and (b) are included amongst the matters to be considered … Ultimately what rule 3.9 requires is that the court should “deal justly with the application”.””

Concluding, Lord Justice Jackson confirmed that “What litigants need is finality, not procrastination … The new rule 3.9 is intended to introduce a culture of compliance, because that is necessary to promote access to justice at proportionate cost. It is not intended to introduce a harsh regime of almost zero tolerance, as some commentators have suggested … Finally, for the avoidance of doubt … I am not criticising the actual decision in [Mitchell].   The master made a very tough order in Mitchell … Nevertheless that order was not outside the permissible range of her case management discretion.”

Please contact Liam O’Shea of Astle Paterson’s Dispute Resolution department on 01283 531366 or by email at

Please click on the link to read the Judgments in full.

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