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Legal Minds

16 July 2014 / by / in

Will Denton restore harmony?

Denton v White & others; Decadent Vapours Limited v Bevan & others; Utilise TDS Limited v Cranstoun Davies & others [2014] All ER (D) 53 (July);  [2014] EWCA Civ 906

The fall out from the Court of Appeal decision in “Mitchell” (Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537) was not far short of catastrophic. “Mitchell” killed the spirit of cooperation, the result being a new culture of aggressive tactical applications, and draconian sanctions resulting in lengthy and expensive delays.

The common sense approach based on reciprocity, between solicitors, a system of give and take which had always smoothed the way in the navigation of complex procedural requirements, disappeared as lawyers felt it their duty to apply to the court on every point in case they could score big against their opponents using the “Mitchell” precedent.

So it is not surprising that many see Denton as a welcome back-track from the stance taken by the Court of Appeal in Mitchell. However, those hoping for a return to the relative relaxation of the pre-Jackson reform days risk coming back down to earth with quite a bump. As it was made clear that Denton is not a step away from Lord Justice Jackson’s aim to encourage compliance with rules, orders and practice directions. Denton has just restored sensible discretion when they are breached.

Denton is a return to Jackson’s intention that all the circumstances of the case should be taken into account, restoring judicial discretion by clarifying that the focus should be on the overriding objective whilst still empathising the risks attaching to non-compliance.