Shepherd and Wedderburn

UK 200 2013 position: 71

Light relief — Denton v TH White

By Ben Pilbrow

Although a decade separated them, both Lord Woolf’s and Lord Jackson’s reports on civil litigation procedure highlighted the need for and recommended change. The reforms that followed both reports sought to address the spiralling waste of time, money and resources in civil litigation. Both judges recommended active case management by the judiciary as the cure. Both judges called for a change of culture among civil litigation practitioners to put an end to the lax observance of court rules. An important question that the courts have struggled to answer satisfactorily since the publication of these reports and the Civil Procedure Rules (CPR) is what happens when the CPR are breached. Where does one draw the line between punishing failures to observe court process and providing substantive access to justice?

In 2013, the Court of Appeal tried to provide guidance regarding the application of Rule 3.9 of the CPR (which sets out the circumstances in which the court should grant parties relief from the sanction) in Mitchell v News Group. The cases that followed Mitchell showed, however, that there was still a great deal of judicial confusion surrounding the issue.

This summer, the Court of Appeal had another stab at providing a satisfactory answer in the case of Denton v TH White. In a joint lead judgment, Lord Dyson reviewed the standards the court should apply in assessing applications for relief. He took great pains to stress that his judgment in Mitchell remained ‘substantially sound’. He asserted that it needed ‘detailed restatement’. Critics might conclude that the new test is more an overhaul than a fine-tuning…

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