Counting the costs


Andrew Mitchell, the former Conservative Chief Whip, has been in the news ever since September 2012, when he may or may not have referred to police officers as “f*@#ing plebs”. More recently, his libel action against News Group Newspapers Ltd, relating to a report of that incident by The Sun newspaper, has been making waves in the legal press.

In the course of Mr Mitchell’s claim against News Group Newspapers Ltd, both parties were required to file a costs budget seven days before a procedural hearing. Costs budgets require the parties to state the costs incurred in the case to date and the anticipated future costs, and are intended to assist the judge in managing the case justly and at proportionate cost.

In this case, Mr Mitchell’s solicitors filed their client’s costs budget the day before the hearing, six days late. With no time for the other side to consider the budget, the hearing had to be re-arranged and the judge made an order which is likely to mean that even if Mr Mitchell is successful in his claim, he will probably only recover a few thousand pounds in costs from the other side, as against a budget of £506,000.

Costs budgets were introduced in April 2013 as part of a package of reforms signalling a tougher approach to compliance with procedural rules in civil litigation. This case provides a stark example of how the new policy objective could give rise to injustice in individual cases.

The judge’s decision, unsurprisingly, was appealed by Mr Mitchell. As an indication of its importance, the appeal was heard not by a High Court judge as would have happened ordinarily, but by the Court of Appeal, where judgment was delivered by Lord Dyson, the head of civil justice in England & Wales.

The Court of Appeal firmly upheld the original decision and was equally unmoved by pleas for mercy made by Mr Mitchell’s lawyers, whose application for “relief from sanction” was refused.

That decision is important not just for what it says about costs budgets, or even late filing of documents, but for what it says about how the civil courts will approach the administration of justice. Lord Dyson stated that the focus should not be exclusively on doing justice in each individual case, but rather on ensuring that justice can be done in the majority of cases. He noted that as a consequence of the original hearing being adjourned and rescheduled at short notice, the judge had to cancel another hearing that had been fixed to deal with claims by people affected by asbestos-related diseases.

Stricter compliance with procedural rules is something that is probably of interest to lawyers only, but it is quite something for one of the country’s most senior judges to state that doing justice in individual cases is not a court’s primary concern. The lessons to be learnt? Make sure you (or lawyers) file documents on time. Oh, and don’t be rude to police officers.

PLEASE NOTE: this briefing note contains information about current legal issues and is only intended as a general statement of the law – it does not give legal advice. No action should be taken in reliance on this note without specific legal advice.

For further information please contact:

ben-horack-newBen Horack
Partner, Litigation
Telephone: +44 20 7845 7442