Mitchell MP v News Group Newspapers Ltd

Under the revised CPR 3.9, the efficient and proportionate conduct of litigation and the enforcement of procedural obligations are of paramount importance. Relief will usually be granted for a trivial default if the application is prompt. For a non-trivial default, the defaulting party must persuade the court to grant relief, and a good reason will usually be required. Pressure of work and overlooking a deadline will rarely suffice.

A costs budget filed after the CPR 3.13 deadline attracts the CPR 3.14 court-fees sanction. Partial relief will rarely be appropriate. Justice requires consideration of other litigants and finite court resources, as well as fairness between the immediate parties.

Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 arose from a defamation claim concerning a newspaper report of an incident involving the claimant and police officers. The claim was subject to the costs-management requirements of Practice Direction 51D.

The claimant failed to discuss costs assumptions or file his budget at least seven days before the costs-management hearing. The budget was filed on the preceding afternoon, and the hearing became abortive. Master McCloud treated the claimant as having filed a budget limited to court fees, by analogy with CPR 3.14, and later refused relief under CPR 3.9.

The claimant appealed both orders. The central questions were whether the analogous sanction was permissible and how strictly the revised CPR 3.9 required courts to enforce compliance with rules, practice directions and orders.

1. The appeals were dismissed. Master McCloud had neither materially misdirected herself nor reached a decision outside the proper scope of her case-management discretion.

2. The Master was entitled to use CPR 3.14 by analogy when selecting a sanction for breach of Practice Direction 51D. The rule represented the considered view of the Civil Procedure Rule Committee concerning a proportionate response to failure to file a costs budget on time. F and C Alternative Investments Ltd (No 3) [2012] EWCA Civ 843 was distinguished because that case concerned an impermissible extension of the distinct and codified Part 36 regime.

3. CPR 3.14 applies where a budget is filed after the deadline in CPR 3.13, not merely where no budget is ever filed. Last-minute filing frustrates the purposes of costs management because the court and the opposing party need sufficient time to consider the budget and its assumptions. The considerations governing whether the court should order otherwise under CPR 3.14 are likely to be the same as those governing relief under CPR 3.9.

4. The revised CPR 3.9 deliberately changed the balance governing relief from sanctions. Although all the circumstances remain relevant, the efficient and proportionate conduct of litigation and the enforcement of compliance are of paramount importance and ordinarily receive greater weight. Justice is not confined to the immediate parties. The court must consider other litigants and the allocation of finite judicial resources.

5. The court should begin with the nature of the default. A trivial failure will usually attract relief if the application is prompt. Where the default is not trivial, the defaulting party bears the burden of persuasion. Relief is likely where there is a good reason, particularly circumstances outside the party's control. Illness, accident or unforeseen developments may qualify; overlooking a deadline because of overwork will rarely do so. The approach in Hashtroodi v Hancock [2004] EWCA Civ 652 was applied by analogy.

6. An application for relief presupposes that the sanction was properly imposed. A challenge to the original order must be made by appeal or, exceptionally, through CPR 3.1(7), subject to the restricted grounds explained in Tibbles v SIG Plc (trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518.

7. The defaults were neither minor nor trivial, and there was no good excuse. They caused an abortive hearing, an adjournment and the displacement of court time allocated to other litigants. Partial relief would undermine the certainty of the CPR 3.14 sanction and encourage satellite litigation. The refusal of relief therefore stood.

1. Court of Appeal (Civil Division): In Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537, the court dismissed the appeals against both of Master McCloud's orders. The appeal, which would ordinarily have lain to a High Court judge, had been transferred to the Court of Appeal.
2. High Court, Queen's Bench Division: On 18 June 2013, Master McCloud treated the claimant as having filed a costs budget comprising only applicable court fees. On 25 July 2013, she refused relief from that sanction and granted permission to appeal. Permission was subsequently extended to cover both orders.