Wednesday, 9 July 2014

DENTON - the key references.

Mitchell was an unimpeachable decision ( paragraphs 9 and 98 ).
Litigants need finality , not procrastination ( para89). The new thinking is that one abides by Orders and then there is a relentless push to trial.
Unless orders should not be flung around but rather confined to circumstances here they are truly necessary ( para 44).
Parties must return to the era of co-operation. The failure to agree sensible extensions and/ or the taking of bad points could result in " heavy costs sanctions " that could impact upon the entire action and not be confined to the specific application itself ( para43).
" Trivial  " is no longer part of the legal lexicon ( para26 ). Rather , the test is whether the breach is serious or significant . If so , one must , as before , look for a good excuse to explain the default ( para30).
The Mitchell examples  of a good reason remain of assistance but are neither exhaustive nor definitive ( para30).
The previous history of the defaulter is irrelevant at the outset. It only enters the equation at stage 3 when one has regard to all the circumstances of the case .
Delay in seeking relief ( see DURRANT ) also comes into play at stage 3 ( para36).
A gulf emerges upon interpreting all of the circumstances at stage 3 . The 2 explicit factors in the Rule must be given " particular weight " say the majority at para 38 whereas Jackson LJ considers that they are part off the general matrix and do not command additional weight .
" The new test is not intended to introduce a harsh regime of almost zero tolerance " concluded Sir Rupert ( para 96).