Consideration of the Application of the Mitchell/Denton Principles and What Constitutes an Abuse of Process

Added on 4th December 2018 by Becket Chambers

Following the implementation of the Mitchell/Denton principles compliance with rules and practice directions has become far more important than it previously had been. Whilst the additional clarification given in Denton has provided a greater understanding of what is expected when seeking to apply for relief from sanctions there remain many examples of misunderstandings and misinterpretations. Moreover there can also be uncertainty as to when those principles are triggered.

Case Law

In Mark v Universal Coatings & Services Ltd & Anor [2018] EWHC 3206 (QB) the High Court heard an appeal of a decision to strike out the claimant’s personal injury claim for damages for silicosis and massive pulmonary fibrosis due to inhalation of silica dust in the course of his employment.

The Claim Form, naming only the First Defendant , was received by the court on the 24^th June 2015, three days prior to the expiry of the limitation period on the 27^th June 2015. Although not issued by the court until the 1^st July 2015, the claim was taken to have been issued on the date it was received, thus within the limitation period.

On the 24^th September the Claimant’s solicitors applied for an extension of time within which to serve the Claim Form as the medical evidence had not yet been obtained, albeit the Claimant’s solicitors stated they had ‘now instructed a medical agency to arrange an appointment on behalf of the Claimant and we are currently awaiting an appointment date.’ On that basis the application was granted and deadline extended until 1^st March 2016.

Shortly thereafter the Claimant’s solicitors went into administration and a new firm took over the file. The new firm made a further application to extend time for service on the 25^th January 2016, again due to the fact that the medical report had not been obtained, stating that ‘following the transfer of this case… a notice of change of solicitor was filed… following a review it soon became apparent that no steps had been taken to obtain medical evidence or indeed to obtain a witness statement from the Claimant…’ Thus the evidence from the second solicitor contradicted that of the first, who stated that an appointment had been requested. The second application was refused. The Claimant’s solicitors therefore amended the Claim Form to include the Second and Third Defendants and served the same on all three Defendants, together with the Particulars of Claim, on the 26^th February 2016, without the medical evidence or schedule of loss; no explanation for their absence having been provided.

The Third Defendant, having indicated its intention to contest jurisdiction when replying to the Claim Form, applied to strike out the claim on three grounds, the Court granting the application on the second of those grounds, being that the order granting the extension of time to serve the Claim Form should be set aside.

The First and Second Defendants also applied to strike out the claim, the Judge considering the application on two alternative bases, the first being that the failure to serve a schedule of loss and medical report with the Particulars of Claim triggered the Mitchell/Denton principles such that the Claimant was obliged to make an application for relief from sanctions, and secondly on the basis of an abuse of process. The Judge found that although there was no sanction for the failures in question, it had been an implied breach of the rules, he therefore proceeded to consider the Mitchell/Denton principles, ultimately striking out the case. In respect of the second ground of the application he went on to say that in the event that ‘even were this not an implied relief against sanctions claim I would strike out the Claim.’ The main reason for the latter being that the Judge found that the Court had been deliberately, or at best, recklessly misled by the Claimant’s solicitor in grating the extension of time given the disparity in the witness statements of the former and subsequent solicitors.

On appeal, Mr Justice Martin Spencer found it a ‘surprising’ contention that the District Judge had applied the Mitchell/Denton principles in such a situation and upon further consideration found that the failure in question had not amounted to an implied breach, ‘16 PD.4 is not in the category of the kind of rule or practice direction to which the implied relief from sanction doctrine should be applied…’

In relation to the abuse of process argument it was found on appeal that there were other explanations for the discrepancies in the witness statements and that without further investigation or oral evidence there was no proper basis upon which the Court could find that it had been misled. Accordingly the Claimant’s application was granted and the claim reinstated as against the First and Second Defendants (the Claimant having not appealed the decision in respect of the Third Defendant).

Guidance

More than ever before it is important to ensure that all rules and practice directions are complied with. In years gone by it was sufficient to simply ensure that a Court order had been complied with, however now it is important to be aware of the entire content of the rules and practice directions that apply to a claim. In the event that any of the same are breached, and preferably before such breach occurs, efforts should be made to consider the potential repercussions, including whether relief is required under the Mitchell/Denton principles. Further difficulty arises from the fact that it is not always immediately obvious as to whether the principles apply, as even where a sanction is not apparent following a breach, consideration should be given as to whether the failure was an implied breach of the rules, thus triggering the application of the principles.