Costs and compliance: Mitchell take two — revised guidance for those seeking relief from court sanctions

After eight months of uncertainty and legal angst, the Court of Appeal has clarified the Mitchell guidance and in so doing introduced a fresh approach for those seeking relief from sanctions. No longer is the post-Jackson motto ‘comply, comply, comply’ (or be sanctioned with very little hope of relief). Rather, the Court of Appeal has introduced a three-stage test to encourage a more practical and co-operative approach to compliance by those litigating and a more consistent and just approach by the courts.

A culture of compliance with an occasional, albeit rare, need for court intervention remains the goal. There is also a clear message that there will be costs penalties for those wasting court time with applications that could have been dealt with by agreement and the straightforward appliance of the new three-stage test.

Litigators and judges alike will welcome the clarification, which many hope will reduce considerably the likelihood of disproportionate penalties and decisions. It might even make litigators more willing to co-operate with each other…

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