The sanctions regime established in Mitchell has been misapplied once again. Lexa Hilliard QC & Jonathan Lopian report on McTear v Engelhard
Once again the Court of Appeal has found it necessary to upbraid a first instance judge for misapplying the principles governing the application of relief from sanctions set out in Mitchell . In McTear v Engelhard [2016] EWCA Civ 487, [2016] All ER (D) 187 (May), the judge refused to allow the defendants to call at trial their witnesses of fact or to rely on recently discovered documents.
The Court of Appeal’s judgment is significant for the emphasis it once again places on the need for the sanctions regime to be applied proportionately. Two points of procedural importance stand out. First, the Court of Appeal stressed that it is not possible for every aspect of every case to be seen purely in terms of relief from sanction. This constitutes an important corrective to the tendency that seemed to have developed in civil litigation in the period following the Mitchell decision. The example cited in this
