Mitchell revisited: the sting in the tail

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  • I don't agree. If a respond abt opposes the application unreasonably than they should be penalised on costs.

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  • Aahafezi, thanks for reading the article and commenting. In fact, I agree that as a matter of principle, unreasonably opposing an application should be penalised. My concern is with how readily the courts are expected to find that the respondent was unreasonable. By saying contested applications should be very much the exception, and giving the indications it did in Decadent and Utilise, the CoA is firmly encouraging first instance judges to find unreasonableness.

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  • In my view the starting point should be a basic level of good manners between solicitors. An opponent calls me and says "Andrew, I am in difficulty. Can I have 14 days to get a statement off a missing witness" - I will consent so long as the trial date is not impacted or it does not really mess up the litigation choreography. But what of this. I have been waiting 7 weeks for surveillance evidence which is holding up the medical evidence. I have a client who is not fraudulent but gravely disquieted by this "video evidence" but then the goons carrying out the surveillance manage to lose the video - or only make available edited material. I get asked for a further 4 weeks - my medics diaries are filling up, joint statements are being delayed, JSM being rescheduled. Why wouldn't I oppose extra time? What is needed is a Master or a DJ to take an overall view on the merits, the presumption being that a party applying from relief should pay the modest costs of an application and the opposing solicitor having an hours time allowed for consideration, advising, taking instructions and reverting. If a bullish opponent forgets his/her manners then the DJ/Master should have the facility to order costs against a stubborn opportunist - or where there is some merit in opposing relief, no order as to costs but there was me thinking orders are, well, you know, orders. To be obeyed. I fear this will result in bullying litigants being able to rewrite timetables at will. Judges at first instance are actually not stupid. They are experienced and pretty senior practitioners. They can see the conduct of the litigation. Karma is too often forgotten in litigation. I will always grant a modest indulgence because I will need one back.

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