The third part of an exclusive NLJ series on controlling costs post-Mitchell using technology solutions, by Damian Murphy, Mark Surguy & Daniel Kavan
In our two previous articles we have looked at the “dark side” of Mitchell v News Group Newspapers [2013] EWCA Civ 1537, [2014] 2 All ER 430. First, we explored the way in which the hard line adopted by the courts in a post-Mitchell world (even as subsequently softened in cases such as Summit Navigation Ltd v Generali Romania Asigurare [2014] EWHC 398 (Comm), [2014] All ER (D) 202 (Feb) and the recent trinity of Denton, Decadent and Utilise [2014] EWCA Civ 906, [2014] All ER (D) 53 (Jul)) can foster a “form over substance” mind-set leading to sterile disclosure exercises where the real litigation value of the documents risks being lost.
Second, we considered where the court draws the line when considering arguments of form over substance and the difficult balancing act facing a litigant who must complete a costs
