In Mitchell, the Court of Appeal [48]

[HYG]

Hi,

Can anyone help with the following question:

In Mitchell, the Court of Appeal stated, at [48], that
“… we consider that well-intentioned incompetence, for which there is no good reason, should not usually attract relief from a sanction unless the default is trivial.”

I know Denton superseded Mitchell but any thoughts on using this argument at a Hearing? Or would it simply fall on deaf ears with the DJ following the Denton case?

Thank you.

Tagged @R0b, @Amethyst but all help most welcome.

[R0b]

Re: In Mitchell, the Court of Appeal [48]

Hi,

Can anyone help with the following question:

In Mitchell, the Court of Appeal stated, at [48], that
“… we consider that well-intentioned incompetence, for which there is no good reason, should not usually attract relief from a sanction unless the default is trivial.”

I know Denton superseded Mitchell but any thoughts on using this argument at a Hearing? Or would it simply fall on deaf ears with the DJ following the Denton case?

Thank you.

Tagged @R0b, @Amethyst but all help most welcome.

Hello,

If I recall, Mitchell wasn't actually superceded by Denton rather it was clarified because it seemed that everyone, including the courts were not approaching it in the correct way and so they clarified the test from two part to three-part test. Aside from this, I think for the large part, it remains good law.

I can't see any reason why you can't refer to Mitchell as I am sure that Denton refers to Mitchell at times especially on the examples of what might not be a good reason for the breach occurring - I think the Court of Appeal didn't give examples but did refer to Mitchell as an example of what that list could be but you'd have to double check.

You will have to apply the criteria in Denton, but Mitchell can be useful as guidelines which could fill in the gaps that Denton didn't discuss.

[HYG]

Re: In Mitchell, the Court of Appeal [48]

Thank you Rob.

You are correct - the Court of Appeal did refer to para 41 of Mitchell with regards to examples.