Is Mitchell the last word on default, asks Dominic Regan
May Donoghue, Louisa Carlill, now Andrew John Bower Mitchell. These individuals have respectively stumbled into shaping the law of negligence, contract and now civil procedure.
Tough line
The tough line on default was recommended in the final Jackson report. Sir Rupert, in the conspectus of change which he penned as an introduction to the White Book Supplement (see the latest version in the October 2013 copy) explained that the new CPR 3.9 was both simpler than its predecessor but also “intended to be a stricter test limiting the cases in which it will be appropriate for the court to grant relief from sanctions”.
An eye-wateringly brutal test was applied by a unanimous and powerfully constituted court in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2013] All ER (D) 314 (Nov). A modest breach attracted a punitive penalty. I take no pleasure, truly, for having accurately predicted the outcome in answer to a question
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