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Industry awaits Mitchell threesome

The effects of the Jackson reforms and fallout from of the Mitchell ruling continue to provoke fierce comment and debate. PremExtra discusses the latest developments. 

A trio of major cases linked to the Mitchell ruling have generated substantial media coverage, with Master of the Rolls Lord Dyson hearing consecutive appeals. 

The Law Society Gazette reported how media attention intensified when Dyson was joined on the bench by Lord Justice Jackson. 

The highly unusual triple hearing aims to clarify the post-Mitchell situation on case management rules. It means the Court of Appeal is hearing the cases of Utilise TDS Limited v Davies; Decadent Vapours Ltd v Bevan & Ors; and Denton & Ors v TH White Ltd & Anr as part of the same process.

All three cases are linked to arguments resulting from the Mitchell judgment last November, when Dyson refused relief from sanctions against the submission of a late costs budget.

The cases are intended to give clarity for lawyers dealing with the implications of the Jackson reforms last year, which introduced new case management rules. 

30 minute delay laughed off 

The hearings did not get off to the most auspicious start, with the irony of a 30 minute delay not lost on lawyers ready to argue that judges were being too harsh on missed deadlines. 

After the hearing got under way, Dyson said a judgment in each case is likely to be reserved and warned lawyers to keep their expectations realistic. Dyson was quoted as saying: "We can't write a lexicon with a solution for all the different problems that can arise." 

Meanwhile, cases across the country have been put on hold until the outcome of the three appeals is known, as each relates to application for relief from sanctions imposed for non-compliance with case management rules. 

Until the issues are resolved, keeping abreast of recent case law is essential, according to a report in Solicitors Journal. It said that although severe sanctions can be imposed for non-compliance, an overly aggressive approach to points arising from Mitchell may be criticised - as happened in Rattan v UBS

Turning away cases 

Another problem that is being linked to the Jackson reforms is access to justice for personal injury clients. Solicitors Journal also carried an article in which the Association of Personal Injury lawyers voiced concerns that more and more PI firms were turning down cases with borderline prospects of success.

In response to the Civil Justice Council's call for evidence on the first year of the Jackson reforms, APIL said solicitors were shying away from complex and high-risk cases, citing fears over financial viability. 

The Solicitors Journal article pointed out that many PI firms are taking these decisions 'not to thrive, but just to survive'. 

A significant number of firms are setting the Damages Based Agreement proportion at 25 per cent, rather than negotiating the fee with the client in the manner apparently intended by Jackson, the report added.