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"Plebgate" Judges Show Just How Tough Things Are Going To Get

Ed Pepperall QC comments on this morning’s judgment from the Court of Appeal.

Unless you’re Peter Perfect, it’s time to check your insurance policy very carefully because the Court of Appeal has just dismissed Andrew Mitchell MP’s appeal in the CPR case of the year.

As is well known, Mr Mitchell failed to lodge his costs budget at least 7 days before the first CMC in his defamation claim against The Sun. In the first serious flexing of judicial muscles post-Jackson, Master McCloud ordered that he be treated as having filed a costs budget limited only to court fees. At a later hearing she refused to allow relief from sanctions despite the desperately tight timetable in that case.

While it is true that the 18th implementation lecture was hard hitting on the question of default, Sir Rupert Jackson never recommended zero tolerance. His reforms have always been about shifting the culture and the courts being “less tolerant” of default. Some of us will therefore have hoped for a different result.

That said, the Court of Appeal does not interfere with case management decisions unless they are outwith the generous ambit of discretion given to judges.

Furthermore there had been much criticism in the run up to Jackson at the role of the Court of Appeal in undermining the Woolf reforms, perhaps no more so than in Lord Woolf’s own judgment in Biguzzi v. Rank Leisure. Sir Rupert stressed the importance of the Court upholding robust but fair case management decisions if his reforms were to effect a change of culture.

In Mitchell, their lordships were honest enough to admit that their decision had more to do with the need to change the culture of litigation than with the justice of Mr Mitchell’s own case. Ultimately they held their noses and dismissed the MP’s appeal.


To read the full judgment click here

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