The Court of Appeal recently handed down a crucial judgment which will result in civil litigation in England and Wales becoming less adversarial and more co-operative. It has issued guidance which will clarify the way civil litigation is conducted following an intervention by the Law Society in three linked appeals.
The Law Society had called for clear guidance on costs sanctions and a re-emphasis of parts of the law to make civil litigation less adversarial and more co-operative. The ruling is that it will help to clarify the interpretation of Civil Procedure Rules and the Court of Appeal’s earlier guidance in the leading case of Mitchell -v- News Group Newspapers Ltd. That case led to significant issues for all solicitors involved in litigation. The Law Society commented that the Mitchell decision had a ‘significantly detrimental’ effect on the conduct of civil litigation as the judgment’s strict application of case management rules had led to ‘a raft of satellite litigation’ at clogged up the courts.
It has also led to inconsistent lower court decisions and a much more adversarial, non-cooperative litigation culture with increased costs.
The Court of Appeal considered the Law Society’s argument and set out and explained a three-stage test. Furthermore the court anticipated a contested application for relief from sanctions should now become less frequent and warned the profession that ‘opportunism’ will be penalised.
It had previously been commented that the Court of Appeal’s decision in these three cases and their conclusion regarding the earlier judgment in Mitchell, had been misunderstood and misapplied by some courts. The new guidance is therefore welcome news for solicitors. Concerns had been raised about the court’s previous decision in Mitchell and the way it was being applied by the lower courts had resulted in a significant amount of unnecessary satellite litigation, waste of costs and court resources and the risk of big increases in professional indemnity insurance costs for members. The clogging up of the system and introduction of huge uncertainty into the whole process of civil litigation needed to be addressed.
The Law Society intervened on behalf its members and for common sense and confirms it will continue to closely monitor the litigation process to ensure that the problems since Mitchell now fall away. If the problem of interpretation of the rules is to be eradicated, the courts should be more consistent in the application of the rules.