Keoghs Insight

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The clock is ticking...impact of Mitchell on fraud cases

Client Alerts04/12/2013
Fraud Aware Issue 2

The Court of Appeal (CoA) recently handed down its first post-Jackson judgment on how strictly the courts should now enforce compliance with rules, practice directions and court orders.

Mitchell v News Group Newspapers is a libel action arising from the ‘Plebgate’ affair, but saw the CoA set out in crystal clear terms its expectations from litigators. The claimant's appeal against the lower court's refusal to grant relief from sanctions arising from the claimant's solicitor’s failure to file a costs budget on time was rejected, indicating that the tougher, less forgiving approach to litigation recommended by Jackson LJ should be followed by the courts. The CoA reaffirmed robustly that the court timetable is there to be complied with, and that the court will not shy away from imposing draconian sanctions for failure to comply.

The easy questions to ask from this are - so what? Is there really anything new here? After all, the timetable has always been there and should always be complied with. Whilst that is quite right (‘pressure of work’ or administrative error should never be an excuse for a firm failing to hit a court deadline), the CoA has re-emphasised that if a claim is going to be in litigation, then it needs to be ready to be in litigation.

What does this mean for fraud cases?

By far the greatest pressure on the court timetable in fraud cases is that cases are often not ready for litigation by the time the claimant issues proceedings. Time (and cost) will frequently be incurred by panel lawyers ‘back-working’ a case to get it in shape and ready to comply with the timetable (e.g. securing relevant documents or reworking evidence to make it admissible) and all against a backdrop of a ticking procedural clock, that is now ticking more loudly than ever. Whilst historically it has been possible to get around this by seeking extensions of time or obtaining relief from sanctions, the CoA has now made it quite clear: in the post-Jackson world, the court will control the timetable and if you cannot comply then you will face sanctions.

So what is the answer?

It’s simple really - front-loading effective pre-lit handling, picking the right fights and team work. Engage with panel lawyers BEFORE claims litigate, with a view to avoiding litigation on weak cases or otherwise identifying the steps that need to be undertaken and the evidence that needs to be refined, before the procedural clock starts ticking. That way, when litigation is the right outcome the baton can be simply handed over – we can drive through the timetable, making sure the new regime works for us, not against us and ultimately delivering successful outcomes more efficiently and economically.