Dominic Regan addresses some unanswered questions
The sense of euphoria generated by the dilution of the mean Mitchell test has waned (see Mitchell MP v News Group Newspapers Ltd [2014] 2 All ER 430, [2013] EWCA Civ 1537).
While Denton has restored faith in the Court of Appeal, it has also raised or left open potentially significant areas of doubt (see Denton v TH White Ltd; Decadent Vapours Ltd v Bevan; Utilise TDS Ltd v Davies [2014] EWCA Civ 90, [2014] All ER (D) 49 (Feb)).
1. “Unless” orders should be reserved for situations in which they are truly required (para 44). This was plainly a warning to those over-zealous judges who wrongly thought that Sir Rupert was in pursuit of a harsh regime of almost zero tolerance, a notion sunk by the man himself at para 96. The lingering difficulty is now to identify when such an order ought to be made. Regrettably, the guidance from the majority is that one does so in situations so as to enable the litigation to proceed efficiently and at proportionate cost (para44). The whole
