header-logo header-logo

The default dichotomy

14 February 2014 / Morwenna Macro
Categories: Opinion , Legal services
printer mail-detail

Morwenna Macro discusses post-Mitchell developments & the two-tier test that the courts may adopt in practice

The Court of Appeal in Mitchell v News Group Newspapers [2013] EWCA Civ 1537 [2013] All ER (D) 314 (Nov) did not intend to change the relationship between justice and procedure “by turning the rules and rule compliance into the mistress rather than the handmaid of justice”; but is this the result of their ruling?

While it seems that generally the judiciary is feeling constrained to narrowly follow the robust approach of Mitchell; there is still some leeway for judges to use their discretion and, with some ingenuity, the traditional notions of justice and prejudice may still prevail.

Mitchell in effect has created a two-tier test; trivial defaults are usually forgiven; non-trivial defaults normally need a good reason for relief to be granted. 

Measuring up

So what is a trivial default? It is a minor slip that causes little or no prejudice, such as a narrowly-missed deadline or a failure of form rather than substance. Therefore:

  • Serving
If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Quinn Emanuel—James McSweeney

Quinn Emanuel—James McSweeney

London promotion underscores firm’s investment in white collar and investigations

Ward Hadaway—Louise Miller

Ward Hadaway—Louise Miller

Private client team strengthened by partner appointment

NLJ Career Profile: Kate Gaskell, Flex Legal

NLJ Career Profile: Kate Gaskell, Flex Legal

Kate Gaskell, CEO of Flex Legal, reflects on chasing her childhood dreams underscores the importance of welcoming those from all backgrounds into the profession

NEWS
Overcrowded prisons, mental health hospitals and immigration centres are failing to meet international and domestic human rights standards, the National Preventive Mechanism (NPM) has warned
Two speedier and more streamlined qualification routes have been launched for probate and conveyancing professionals
Workplace stress was a contributing factor in almost one in eight cases before the employment tribunal last year, indicating its endemic grip on the UK workplace
In Ward v Rai, the High Court reaffirmed that imprecise points of dispute can and will be struck out. Writing in NLJ this week, Amy Dunkley of Bolt Burdon Kemp reports on the decision and its implications for practitioners
Could the Supreme Court’s ruling in R v Hayes; R v Palombo unintentionally unsettle future complex fraud trials? Maia Cohen-Lask of Corker Binning explores the question in NLJ this week
back-to-top-scroll