1.1 The re-consideration of the Mitchell approach in Dentonshows a change in the judicial approach and may well be seen as helpful to EJs
considering similar problems. Indeed,
consistent with earlier CA authority, it may be that EJs will be expected to
follow the same three stage approach as found in Denton.
The underlying reasoning of the CA in Denton may provide guidance on the
approach to be taken towards a wider range of case management issues.
The new CPR 3.9 and Mitchell
The (old and new) ET Rules and the CA’s views in Neary
Life after Denton – a three stage approach
What is the seriousness and significance of the
Why did the default occur?
Look at all the circumstances of the case,
giving particular weight to the two factors highlighted in CPR3.9.
It can be said that stages one and two have been
separated out from the general consideration of all the factors at stage three
because they deal with matters frequently central to (and often decisive of)
such an application.
It is clear that the CA isolated the seriousness
and significance of the default, because it took the view that defaults which
were considered not to be serious and (perhaps or) to be of little significance
would be unlikely to require any detailed consideration at stages two and
three. Hence, a trivial delay of a few
days in compliance where this did not significantly prejudice the prospect of a
fair trial would be earmarked for relief.
Note that the other stages must be considered, because (eg) the default
may have been deliberate with an intention to cause difficulties which did not
actually materialise (considered at stage two), or may follow on from a series
of past failures (to be considered at stage three). Stage one is really designed to focus on the
possibility of there being a likely reason to grant relief. It is an opportunity to identify the presence
of a factor which often leads to it being granted.
The reason for the default occurring appears to
have been singled out because certain reasons may strongly suggest that relief
should, or should not, be given.
Deliberate default will often properly incline an EJ to refuse
relief. Understandable default (eg
because someone about to comply was taken ill, or an entry in a diary was
recorded incorrectly) will often have the opposite result. However, it is important to note that such
matters must be seen in context. An
otherwise ‘excusable’ delay may not give rise to relief where the time for
compliance had been carefully selected to give one party the maximum time to comply,
leaving the other with the minimum period of time to trial.
The final stage is to look at all the
factors. For CPR3.9 purposes Denton says that the judge must give
‘particular weight’ to the two factors given special mention in the rule. That is, first, the efficient conduct of
litigation (said by the CA to require consideration of the effect of the
breach) and, secondly, the importance of complying with rules, orders
etc.. I would suggest that whilst these
are not factors singled out in the ET Rules, they are both matters which an EJ
would be expected to have in mind in every case. The first may be said already to be
considered at the first stage, so far as the particular case itself is
concerned, the second is a factor that EJs have often had regard to. The CA felt that the importance of that
second matter may have been given insufficient attention in the past: that is a point which EJs may well seize upon
to give it particular prominence. The
fact that the ET system is not presently under the strain it once was will not
be seen as a reason to be more lax in considering such applications.
The possible wider impact of Denton
 Jackson LJ was in the
minority is proposing an even more general ‘interests of justice’ approach.